Crl.A.No.615/2008 Page 1 of 33 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 21st April, 2010 Judgment Pronounced on: 4thMay, 2010 + CRL.APPEAL No.615/2008 MUKESH ..... Appellant Through: Ms.Shraddha Bhargava, Advocate versus STATE ..... Respondent Through: Ms.Richa Kapoor, Advocate 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. Appellant Mukesh faced trial for the charge of having murdered his wife Anita (hereinafter referred to as the “Deceased”) on 23.4.2004 at around 2:00 PM in the matrimonial house of the parties being Flat No.55, Pocket IV, Sector-21, Rohini, Delhi. 2. Vide impugned judgment and order dated 01.10.2007, the appellant has been held guilty of murder for which offence he has been sentenced to undergo imprisonment for life and Crl.A.No.615/2008 Page 2 of 33 pay fine in sum of Rs.10,000/-; in default of payment of fine to undergo rigorous imprisonment for a period of two months. 3. Case of the prosecution against the appellant was that on 23.04.2004 at about 2.45 PM the appellant came to PS Sultanpuri and informed HC Dilbagh Singh PW-8 that along with his wife and his three children the appellant resides at flat bearing Municipal No.55, Pocket IV, Sector 21, Rohini, Delhi and that his sister Krishna and her husband Bhanu reside in the flat opposite to his house. That since last few days the deceased was having illicit relations with his brother-in-law Bhanu. That he requested the deceased to end her relationship with Bhanu but she did not pay any heed to his requests. That today i.e. 23.04.2004 at about 10.00 AM he took his three children to the terrace of his house and left them there for playing. Thereafter he came downstairs and strangulated his wife with the string of her salwar and also cut her neck with a kitchen knife. After sometime he bolted his house and took his children to his sister Krishna in NPL Colony and left them with her. Having realized that he has committed a wrong by murdering his wife he has come to the police station to confess his guilt. One Shakeel PW-16, a public person was present at the police station and heard the said confession being made by the appellant. HC Dilbagh Singh PW-8, Crl.A.No.615/2008 Page 3 of 33 recorded the afore-noted information given by the appellant in DD No.20A, Ex.PW-8/A. 4. DD No.20A was assigned to SI Jagdish Rai PW-19 for inquiry who left the police station in the company of the appellant and took along with him Const.Pawan Kumar PW-18. On reaching the flat where the appellant resided the two police officers saw the deceased lying dead on a mattress with ligature marks and a cut mark on her neck and a string tied around her neck. A knife, a shirt and a pant were lying near the body of the deceased. 5. After sometime, Vipin PW-6, and Girish Kumar PW-11, the neighbours of the appellant, arrived at the house in question upon which the appellant told them that he had murdered his wife. 6. SI Jagdish Rai made an endorsement Ex.PW-19/A beneath copy of the DD entry Ex.PW-8/A, and at around 4.30 PM handed over the same to Const.Pawan Kumar PW-18 for FIR to be registered. Const.Pawan Kumar took the endorsement Ex.PW-19/A to the police station and handed over the same to HC Kulvir Singh PW-2, who recorded FIR No.452/04, Ex.PW-2/A. 7. Inspector Sukhvinder Singh PW-20 took over the investigation and reached the house where the deceased was Crl.A.No.615/2008 Page 4 of 33 murdered. He seized the knife, the shirt and the pant found near the body of the deceased vide memos Ex.PW-11/A and Ex.PW-11/F respectively. 8. In view of the confession made by the appellant, Inspector Sukhvinder Singh arrested the appellant at 7.30 PM on 23.04.2004 as recorded in the arrest memo Ex.PW-6/C. 9. He seized the dead body and sent it to the mortuary along with the inquest papers and on 27.04.2004 at about 2.15 PM Dr.Ashish Jain PW-5 conducted the post-mortem and prepared the post-mortem report Ex.PW-5/A recording therein that a ligature mark and a cut injury was found on the neck of the deceased. The cause of death of the deceased was asphyxia resulting from strangulation and that it is possible that the deceased was strangulated with the string found tied around the neck of the deceased. He opined that the cut injury on the neck of the deceased was possible by the knife found lying near the body. He handed over the clothes and the blood sample of the deceased on a gauze to the investigating officer. 10. All the blood stained exhibits i.e. the ones lifted from the scene of the crime and those handed over by the doctor who conducted the post-mortem were sent for serological examination and vide FSL report Ex.PW-20/D, human blood was detected on the knife and the pant found near the body of Crl.A.No.615/2008 Page 5 of 33 the deceased; group whereof could not be determined. Human blood of group A was detected on the shirt found near the body of the deceased. 11. Sonu PW-15 the sister of the deceased and her mother Shela Devi PW-10 told the investigating officer that the appellant used to beat his wife and used to demand money. 12. A charge sheet was filed against the appellant with the allegation that the motive for the crime was to get rid of his wife who was having illicit relationship with her brother-in-law as per the confession made by the appellant and could not satisfy his monetary demands through her parents and that he himself reported the crime to the police and at that time Shakeel PW-16 was present and heard the extra judicial confession. Further, the appellant made another extra judicial confession when he was brought to his house when Vipin PW-6 and Girish Kumar PW-11 who resided in the neighbourhood of the appellant were present. It is apparent that hardly any investigation needed to be done as the weapon of offence, a knife was found at the spot of the crime itself. 13. At the trial the prosecution examined 20 witnesses. 14. Vipin PW-6, a neighbour of the appellant, deposed that on 23.04.2002 at about 3.40 PM he was standing outside his Crl.A.No.615/2008 Page 6 of 33 house and that the appellant along with some police officials was standing at some distance from him. At that time, the appellant told him that he had murdered his wife. The clothes worn by the appellant at that time were not stained with blood. On being questioned about the children of the appellant and the deceased, he stated (Quote): ‘Mukesh was having in his family three children apart from his wife. Police had not recorded any statement of children of Mukesh in my presence.’ 15. HC Dilbagh Singh PW-8, deposed that he had prepared DD entry Ex.PW-8/A on the basis of the statement given by the appellant. He deposed that the clothes worn by the appellant at the time when he came to the police station were stained with blood. 16. Shela Devi PW-10, the mother of the deceased and her daughter Sonu PW-15 deposed that the appellant used to beat the deceased on account of money since they could not fulfil his demand for money and that they had noted beating marks on the body of the deceased. On being questioned about the children of the deceased and the appellant, the mother of the deceased stated (Quote): ‘Mukesh and my daughter had three issues. The eldest daughter of my daughter is aged about 7-8 years....I tired to meet with the children of my deceased Crl.A.No.615/2008 Page 7 of 33 daughter but was not allowed to meet them and they were beaten by the accused.’ Krishan PW-14 a neighbour of the parents of the deceased, deposed that the appellant was of quarrelsome nature and was a drunkard. On one occasion, he visited the parental home of the deceased and demanded Rs.5,000/- from the parents of the deceased. When the parents of the deceased refused to give him the money, the appellant quarrelled with them. The appellant was accompanied by the deceased and the deceased was having injuries on her person. The mother of the deceased gave a sum of Rs.2,000/- to the appellant. 17. Girish Kumar PW-11, did not support the case of the prosecution and denied that the appellant had made any confession in his presence on 23.04.2004 that he had murdered the deceased. 18. Shakeel PW-16, deposed that on 23.04.2004 at about 2.30 PM he was present in the police station when the appellant came there and made a confession to the police of having murdered his wife. That thereafter the appellant again made a confession in his house in his presence. Two public persons were present when the appellant so confessed. 19. Const.Pawan Kumar PW-18 and SI Jagdish Rai PW-19, deposed that they visited the house in question on the day of Crl.A.No.615/2008 Page 8 of 33 the incident and participated in the spot investigation. On being questioned about the children of the appellant and the deceased, SI Jagdish Rai stated (Quote): ‘Children of Mukesh were not present at the house. I did not take any steps to call any of the children...Children of Mukesh accused did not reach the spot during the period we remained at the spot.’ 20. Inspector Sukhvinder Singh PW-20, deposed that the present case was investigated by him. On being questioned about the children of the appellant and the deceased, he stated (Quote): ‘Children of the accused were not present at his house. I tried to call children of the accused for being joined in the investigation but none came forward. I cannot tell as to how many times I tried to join the children in the investigation. This is a fact that I did not record statement of children, as they did not make any statement. Children met me but I do not remember the date of their meeting me.’ 21. When examined under Section 313 Cr.P.C. the appellant stated that on 23.04.2004 at about 8.00 AM he left his house to go to the residence of his mother in NPL colony, Rajinder Nagar, Delhi. When he returned to his house at about 12.30 PM he saw that his wife was lying murdered. He went to the house of one of his neighbours and told the lady present there about the murder of the deceased but she feigned ignorance Crl.A.No.615/2008 Page 9 of 33 about the same. Thereafter he went to police station Sultanpuri and informed the police about the murder of the deceased. He denied having made any confession to any police officers or his neighbours Vipin and Girish. The appellant did not lead any evidence in support of his defence. 22. As already stated herein above, the learned Trial Judge convicted the appellant. It has been held by the learned Trial Judge that: - (i) In view of the law laid down by the Supreme Court in the decision reported as Aghnoo Nagesia v State of Bihar AIR 1966 SC 119, save and except the facts that the appellant informed the police about the murder of the deceased and that the deceased was having illicit relations with his brother-in-law, remaining statements attributed to the appellant being incriminatory and as entered in Ex.PW-8/A are not admissible in evidence; (ii) In view of the law laid down by the Supreme Court in the decisions reported as Aghnoo Nagesia v State of Bihar AIR 1966 SC 119 and State of AP v Gangula AIR 1997 SC 1588, the extra-judicial confession made by the appellant to Vipin PW-6 and Girish Kumar PW-12 is not admissible in evidence for the appellant was in “police custody” at the time he made the said confession; (iii) That the prosecution has failed to establish any motive for the appellant to murder the deceased holding that there were discrepancies Crl.A.No.615/2008 Page 10 of 33 in the evidence of the witnesses Shela Devi PW-10, Krishan PW-12 and Sonu PW-15, and that the prosecution had failed to examine the children of the appellant and the deceased who could have thrown considerable light on the relationship between the appellant and the deceased; (iv) That nothing turns on the fact that a blood-stained knife, a shirt and a pant were found near the body of the deceased; (v) That since the deceased was murdered in her matrimonial house, Section 106 of the Evidence Act made it incumbent upon the appellant to furnish an explanation as to how the deceased died and (vi) That the fact that the appellant had failed to give a satisfactory explanation for the death of the deceased for he did not lead any evidence to prove his defence of alibi leads to a conclusion that the appellant is the perpetrator of the crime. 23. From the narratives stated herein above, it is apparent that the prosecution used following four circumstances to infer the guilt of the appellant:- I The appellant made a confession to HC Dilbagh Singh PW-8, as recorded in the DD entry Ex.PW-8/A. II The appellant made an extra-judicial confession to Vipin PW-6 and Girish Kumar PW-12. Crl.A.No.615/2008 Page 11 of 33 III The appellant had a motive to murder the deceased as established by witnesses, Shela Devi PW-10, Krishan PW-12 and Sonu PW-15. IV The deceased was strangulated within the four walls of her matrimonial house and that the appellant failed to render any satisfactory explanation for the death of the deceased. 24. Whether the recordings contained in DD entry Ex.PW-8/A prepared by HC Dilbagh Singh on the basis of the alleged statement given by the appellant, which has formed the basis of the registration of the FIR in the present case can be used against the appellant? 25. In the decision reported as Nisar Ali v State of UP AIR 1957 SC 366 the question which arose before Supreme Court was whether a statement contained in an FIR lodged by an accused can be used against the co-accused. Supreme Court answered the aforesaid question in negative in following terms:- “….An objection has been taken to the admissibility of this report as it was made by a person who was a co-accused. A first information report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under Section 157 of the Evidence Act or to contradict it under Section 145 of that Act. It cannot be used as evidence against the maker at the trial if he himself becomes an accused, nor to corroborate or contradict other witnesses. In this case, therefore, it is not evidence.” (Emphasis Supplied) Crl.A.No.615/2008 Page 12 of 33 26. In the decision reported as Faddi v State of MP AIR 1964 SC 1850 the accused who was charged with the offence of murdering his step son lodged an FIR stating therein that he had seen the dead body of the deceased floating in a well, which statement was found to be incorrect. Relying upon afore-noted observations made by Supreme Court in Nisar‟s case (supra) it was contended that the first information report lodged by the accused is an inadmissible piece of evidence. Repelling the said contention, Supreme Court observed as under:- “The report is not a confession of the appellant. It is not a statement made to a police officer during the course of investigation. Section 25 of the Evidence Act and Section 162 of the Code of Criminal Procedure do not bar its admissibility. The report is an admission by the accused of certain facts which have a bearing on the question to be determined by the Court viz. how and by whom the murder of Gulab was committed, or whether the appellant‟s statement in Court denying the correctness of certain statements‟ of the prosecution witnesses is correct or not. Admissions are admissible in evidence under Section 21 of the Act. Section 17 defines an admission to be a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, thereafter mentioned, in the Act. Section 21 provides that admissions are relevant and may be proved as against a person who makes them. Illustrations (c), (d) and (e) to Section 21 are of the circumstances in which an accused could prove his own admissions which go in his favour in view of the exceptions mentioned in Section 21 to the provision that admissions could not be proved by the person who makes them. It is therefore clear that admissions of an accused can be proved against him. xxxx Crl.A.No.615/2008 Page 13 of 33 It is on these observations that it has been contended for the appellant that his report was inadmissible in evidence. Ostensibly, the expression „it cannot be used as evidence against the maker at the trial if he himself becomes an accused‟ supports the appellant‟s contention. But it appears to us that in the context in which the observation is made and in the circumstances, which we have verified from the record of that case, that the Sessions Judge had definitely held the first information report lodged by the co-accused who was acquitted to be inadmissible against Nisar Ali, and that the High Court did not refer to it at all in its judgment, this observation really refers to a first information report which is in the nature of a confession by the maker thereof. Of course a confessional first information report cannot be used against the maker when he be an accused and necessarily cannot be used against a co-accused. Further, the last sentence of the above-quoted observation is significant and indicates what the Court meant was that the first information report lodged by Qudratullah, the co- accused, was not a evidence against Nisar Ali. This Court did not mean — as it had not to determine in that case — that a first information report which is not a confession cannot be used as an admission under Section 21 of the Evidence Act or as a relevant statement under any other provisions of that Act. We find also that this observation has been understood in this way by the Rajasthan High Court in State v. Balchand and in State of Rajasthan v. Shiv Singh and by the Allahabad High Court in Allahdia v. State.” 27. The legal principle which emerges from Faddi‟s case (supra) is that, where the accused himself lodges the first information report, the fact of his giving information of the crime to the police is admissible against him as evidence of his Crl.A.No.615/2008 Page 14 of 33 conduct under Section 8 of Evidence Act and that if the first information report is a non-confessional statement the same can be used against him as an admission under Section 21 of Evidence Act. 28. What is meant by the word “confession”? 29. The word “confession” has not been defined in the Evidence Act. For a long time, Courts in India have adopted the definition of “confession” given in Article 22 of Stephen‟s Digest of Law of Evidence. According to that definition, a confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. However, in the decisions reported as R v Jagrup ILR 7 ALL 646 and R v Santya Bandhu 4 Bom LR 633 Allahabad High Court and Bombay High Court respectively did not accept such a wider definition and gave a narrower meaning to the word “confession” holding that only a statement which is a direct acknowledgement of guilt would amount to confession and that a statement which is merely an inculpatory admission which falls short of being admission of guilt would not amount to confession. The issue as to meaning of word “confession” was ultimately settled by Privy Council in the decision reported as Pakala Narayana Swami v Emperor 66 IA 66 where Lord Atkin observed as under:- Crl.A.No.615/2008 Page 15 of 33 “Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the office (sic offence). An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession e.g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused death with no explanation of any other man‟s possession. Some confusion appears to have been caused by the definition of confession in Article 22 of Stephen’s Digest of the Law of Evidence, which defines a confession as an admission made at any time by a person charged with crime stating or suggesting the inference that he committed that crime. If the surrounding articles are examined, it will be apparent that the learned author after dealing with admissions generally is applying himself to admissions in criminal cases, and for this purpose defines confessions so as to cover all such admissions, in order to have a general term for use in the three following articles: confession secured by inducement, made upon oath, made under a promise of secrecy. The definition is not contained in the Evidence Act, 1872; and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused „suggesting the inference that he committed‟ the crime.” 30. The aforesaid observations of Lord Atkin in Pakala‟s case (supra) received the approval of a 3-Judge Bench of Supreme Court in the decision reported as Palvinder Kaur v State of Punjab 1953 CriLJ 154. 31. In this regards, it is most apposite to refer to the decision of Supreme Court reported as Aghnoo Nagesia v State of Bihar AIR 1966 SC 119. In the said case, the accused who was charged with the offence(s) of having murdered four persons lodged an FIR with the police. The Supreme Court divided the said FIR into 18 parts for the purposes of determining its Crl.A.No.615/2008 Page 16 of 33 admissibility. Parts 1, 15 and 18 contained recordings pertaining to the fact that the accused went to the police station to lodge the FIR; parts 2 and 16 contained recordings pertaining to the motive of the accused for committing the murders; parts 3, 5, 8 and 10 contained recordings pertaining to the movements of the accused before and after the commission of murders; part 8 also contained recordings pertaining to intention of the accused; parts 4, 6, 9, 11 and 12 contained recordings pertaining to admission of guilt by the accused as also his motive for committing the murders and parts 7, 13 and 17 contained recordings pertaining to concealment of dead bodies and weapon of offence by the accused and his ability to get recover the same. The Supreme Court reiterated the law laid down in Faddi‟s case (supra) with respect to admissibility of an FIR lodged by the accused. Thereafter, it proceeded to determine whether the afore-noted 18 parts of the FIR in question amount to a confession or not. It was held by Supreme Court that save and except parts 1, 15 and 18 which contained recordings pertaining to the fact that the accused was the maker of the FIR and the parts which came within the purview of Section 27 of Evidence Act, the entire FIR amounts to confession and should be excluded from evidence. The relevant discussion contained in the said decision is being noted herein under:- Crl.A.No.615/2008 Page 17 of 33 “Now, a confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the preparation, the