Crl.A.No.433/2007 & 747/2007 Page 1 of 66 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on:5th April, 2010 Judgment Pronounced on:26thApril, 2010 + CRL.APPEAL No.433/2007 UTTAM KUMAR ..... Appellant Through: Mr.Anurag Jain, Advocate versus STATE ..... Respondent Through: Ms.Richa Kapoor, Advocate CRL.APPEAL No.747/2007 STATE ..... Appellant Through: Ms.Richa Kapoor, Advocate versus UTTAM KUMAR ..... Respondent Through: Mr.Anurag Jain, 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. Process of criminal law was set into motion when at around 11.20 P.M. on 19.04.1999 ASI Dani Ram PW-4, noted vide daily diary entry Ex.PW-4/A, that one Anil Garg r/o A-24, Adarsh Nagar, Rama Road, Delhi has informed over Crl.A.No.433/2007 & 747/2007 Page 2 of 66 telephone that his daughter Priyanka (herein after referred to as the “Deceased”) has been forcibly confined in a bathroom by her tutor; that the door of the said bathroom is bolted from inside and that said person is not opening the door of the bathroom inspite of repeated knocking at the door. 2. Inspector Jeewan Singh Gill PW-18, was handed over a copy of the afore-noted DD entry. Accompanied by Const.Bhura Singh PW-13, Const.Giri Kumar PW-14, Const.Mukesh PW-15 and SI Mukesh Kumar PW-17, Inspector Jeewan Singh Gill reached the house in question and what happened thereafter is recorded in the endorsement (tehrir) Ex.PW-16/A made by Inspector Jeewan Singh Gill PW-18, which reads as under:- “Respected Duty Officer Police Station Adarsh Nagar it is humbly submitted that after receiving a copy of D.D. No.21A dated 19/4/99 I Inspector accompanied with SI Mukesh Kumar, Const.Giri Kumar No 2372/NW and Const.Bhura Singh No 1415/NW and Const.Mukesh Kumar 1634/NW reached H. No.A-24, Rama Road, Adarsh Nagar, where I met Anil Garg and his wife and children and told that the tutor of their children Uttam Kumar has locked their daughter Priyanka in a bathroom on the first floor of the house and that he is not opening the door of the bathroom inspite of repeated knocking at the door. When the door of the bathroom was not opened inspite of my knocking at the door the same was forcibly opened and broken upon which I saw that the dead body of Kumari Priyanka was lying in the pool of blood in the bathtub in the bathroom and that there were injury Crl.A.No.433/2007 & 747/2007 Page 3 of 66 marks caused by sharp weapon on the neck, chest and ear of Priyanka. Huge quantity of blood was lying in the bathtub and that there were drops of blood at various places in the bathroom. Accused Uttam Kumar s/o Hazari Lal who was holding a blood stained knife in his right hand was found standing in the bathroom The aforesaid police officers apprehended the accused. Thereafter the statement of Anil Garg was recorded and on the basis of the said statement and circumstances found at the spot it appears that an offence punishable under Section 302 IPC has been committed. Therefore the said endorsement is being handed over to Const.Giri Kumar No.2372/NW for registration of FIR. The FIR be registered and the number of the FIR be intimated to the undersigned. Crime Team and photographer be sent at the spot and special report be delivered. I am conducting investigation at the spot. Time of Occurrence: 19/4/99 at 9.30 to 11.20 PM Place of Occurence: Bathroom first floor H. No. A 24 Rama Road Adarsh Nagar Time of departure of endorsement: 20.04.99 at 1.30 A.M.” (Translated Version) 3. The afore-noted endorsement on basis whereof the FIR was registered was preceded by Inspector Jeewan Singh Gill PW-18, recording the statement Ex.PW-2/A of Anil Garg, the father of the deceased, gist whereof is that the deceased was a student of second year, St. Stephen college and that her marriage was to be solemnized on 28.04.1999. Accused Uttam Kumar used to give tuitions to his son Vibhor at his residence. On 19.04.1999 at around 09.30 P.M. the deceased and her mother returned to the house after shopping. At that time Uttam Kumar was teaching Vibhor in Crl.A.No.433/2007 & 747/2007 Page 4 of 66 a room on the first floor of the house. After keeping the things purchased by her in the house the deceased went to the room where the accused was teaching Vibhor. When the deceased entered Vibhor‟s room, Vibhor went to the kitchen to drink water. Thereafter he i.e. Anil Garg along with Vibhor went to the room where the accused was teaching Vibhor. When he i.e. Anil Garg did not find the accused in the room he made inquiries from Vibhor about the whereabouts of the accused upon which Vibhor told him that the accused might be present in the bathroom attached to the said room. Thereafter he inquired about the deceased as she was nowhere to be seen in the house. When he and his family members could not find the deceased anywhere in the house a doubt arose in his mind that perhaps the accused may have locked the deceased and himself in the bathroom. The door of the bathroom was knocked and the accused responded and on being asked to open the door, the accused replied ‘Since you are marrying the deceased with some other boy I have murdered her and that I would not open the door’. Thereafter he informed the police about the aforesaid incident. 4. The statement Ex.PW-2/A on which the endorsement Ex.PW-16/A was made by Inspector Jeewan Singh Gill was forwarded at 01.30 A.M. on 20.04.1999 through Const.Giri Crl.A.No.433/2007 & 747/2007 Page 5 of 66 Kumar PW-14, to the police station for registration of an FIR where HC Veer Sen PW-16, registered FIR No.235/1999, Ex.PW-16/B. 5. As recorded in the endorsement Ex.PW-16/A, the appellant was apprehended at the spot. In fact, if the contents of the endorsement Ex.PW-16/A are correct, the accused was caught red-handed. Inspector Jeewan Singh Gill PW-18, seized the knife recovered from the possession of the accused vide memo Ex.PW-2/4 as also prepared the sketch Ex.PW-2/3 of the said knife. Thereafter Inspector Jeewan Singh Gill seized the shirt and vest worn by the accused when he was apprehended vide memo Ex.PW-2/5. It may be noted that the seizure memo Ex.PW-2/5 records that three buttons of the shirt worn by the accused when he was apprehended were found to be broken. Inspector Jeewan Singh Gill prepared the site plan Ex.PW-18/1 of the house in question; recording therein at points „XA‟ and „XC‟ the spots where the body of the deceased was lying and the accused was found standing in the bathroom respectively. 6. In the meantime, SI Ashok Kumar PW-11, Finger Print Expert, and Const.Yashpal PW-12, a photographer, reached the spot on being summoned. SI Ashok Kumar inspected the spot and prepared his report Ex.PW-11/A. The report Ex.PW- 11/A records that four chance prints were found on a Crl.A.No.433/2007 & 747/2007 Page 6 of 66 washing machine kept in the bathroom in question. It is also noteworthy that the report Ex.PW-11/A records that the time of the occurrence of the murder of the deceased was about 09.15 P.M. on 19.04.1999. 7. Const.Yashpal PW-12, took the photographs Ex.PW- 12/8 to Ex.PW-12/13 of the body of the deceased as also the bathroom where the body of the deceased was found; negatives whereof are Ex.PW-12/1 to Ex.PW-12/7. (It may be noted here that one photograph could not be developed). The photographs Ex.PW-12/12 and Ex.PW-12/13 depict the door from within the bathroom which opens into the bedroom. 8. The body was seized and sent to the mortuary, where on 20.04.1999, at about 11.35 A.M. Dr.Komal Singh PW-9, conducted the post-mortem and prepared the report Ex.PW- 9/1. Following external injuries were found on the person of the deceased as recorded in the post-mortem report Ex.PW- 9/A:- “1. Incised, clean cut on right upper side of 1st intercostal space 2 cm x 1.2 cm in size, both angle obtuse 2. Incised, clean cut wound on right side of chest 2.8 cm x 1.8 cm in size just below and medial to No.1, both angles acute 3. Five small size incised wound over left lateral side of neck 0.8 cm x 0.1 cm, 0.4 cm x 0.1 cm, 0.6 Crl.A.No.433/2007 & 747/2007 Page 7 of 66 cm x 0.2 cm, 0.4 cm x 0.1 cm, 0.5 cm x 0.1 cm. Clean cut, both angles acute 4. Cut throat on right to left side of neck. 8 cm x 4 cm in size at upper level of thyroid cartilage. All adjacent tissues stained with clotted blood. 5. Multiple adjacent wound lower down to No.4 injury 0.4 cm x 0.1 cm, 1 mm x 1 mm, 2 mm x 2 mm 6. Incised cut just below No.4 injury 6 cm x 1.2 cm in size 7. Cut incised wound on left lateral side 1.4 cm x 0.3 cm wound on neck just left to No.5 injury 8. Cut sickle shape, incised wound on lower side of chest 3 cm x 3 mm in size” (Emphasis Supplied) 9. The post-mortem report Ex.PW-9/1 further records that the cause of death of the deceased was shock resulting from injuries Nos.1 and 2 found on the person of the deceased; that all the injuries found on the person were ante-mortem in nature and that the death of the deceased had taken place about 12 hours before the conduct of the post- mortem. 10. The knife recovered from the possession of the accused at the time of his arrest was also sent to the mortuary along with the body of the deceased for purposes of obtaining opinion of the doctor regarding the weapon of offence. Dr.Komal Singh PW-9 examined the said knife and gave his opinion Ex.PW-9/2 which inter-alia records that the Crl.A.No.433/2007 & 747/2007 Page 8 of 66 injuries Nos.1 and 2 found on the person of the deceased could have been caused by the said knife. The opinion Ex.PW-9/2 has been penned at the rear page of the post- mortem report on which the sketch of the knife has also been drawn by Dr.Komal Singh. 11. After conducting the post-mortem, Dr.Komal Singh handed over the blood sample of the deceased on a gauze and the clothes of the deceased to Const.Bhoora Singh PW- 13 and Const.Giri Kumar PW-14, and the same were seized by the investigating officer vide memo Ex.PW-13/1 when the two handed over the same to the investigating officer. For record it may be noted here itself that on 12.07.1999 Dr.Komal Singh gave a second opinion Ex.PW-9/3 regarding the weapon of offence; the opinion being that the injuries nos.3 to 8 found on the person of the deceased could have been caused by the knife recovered from the possession of the accused. 12. The clothes and blood sample of the deceased; the knife recovered from the possession of the accused and the shirt and vest worn by the accused at the time when he was arrested were sent to the Forensic Science Laboratory for serological examination. 13. Vide FSL reports Ex.PW-18/9/(1-2), Ex.PW-18/9/3 and Ex.PW-18/9/4, it was opined that the blood group of the Crl.A.No.433/2007 & 747/2007 Page 9 of 66 deceased was O; that human blood of „O‟ group was found on the shirt worn by the accused at the time of his arrest; human blood of the same group was detected on the clothes of the deceased and the knife recovered from the possession of the accused. It was further opined that human blood was detected on the vest worn by the accused at the time of his arrest, group whereof could not be determined. 14. The four chance prints found in the bathroom where the body of the deceased was found dead and the specimen finger prints of the accused were sent to the Finger Print Bureau for comparison. Vide report Ex.PW-1/A it was opined that one of the chance prints found in the bathroom in question is identical with the finger print of the accused. 15. Statements of family members of the deceased present in the house were recorded, all of whom inculpated the appellant. 16. Armed with the aforesaid materials, the police filed a charge sheet against the accused. 17. In a nutshell, the case set up by the prosecution against the appellant was that the appellant who was the tutor of the deceased and her brothers developed a liking for the deceased. When the appellant learnt that the deceased is getting married he got enraged and murdered the Crl.A.No.433/2007 & 747/2007 Page 10 of 66 deceased by indiscriminately stabbing her in the bathroom in her house. 18. Before proceeding to note the evidence led at the trial, it is most important to note certain facts which were pressed into aid by learned counsel for the State to show, as per the State, the crafty mind of the appellant. 19. During the trial, the appellant filed an application dated 06.09.2005 under Section 91 Cr.P.C. praying that the official record maintained at Tihar Jail pertaining to the meetings held between the jail inmates and the visitors between the period 21.04.1999 to 09.05.2000 be summoned. Along with the said application, written arguments were also filed by the appellant detailing the reasons for summoning the said record. (It may be noted here that the application dated 06.09.2005 is at page 1201 of the trial court record whereas the arguments filed by the appellant in support of the said application are at page 787 of the trial court record. It may further be noted that the said two documents are not drafted by the counsel of the appellant but are penned by the appellant himself in his own hand). 20. It is significant to note that the written arguments filed by the appellant in support of the application dated 06.09.2005 records that between the period 21.04.1999 to 09.05.2000 one Tinnu @ Tinny, the lover of the deceased, Crl.A.No.433/2007 & 747/2007 Page 11 of 66 accompanied by his two friends named Raj and Suresh visited him in Tihar Jail. During the said visits, Tinny told him that on 19.04.1999 he met the deceased in a market. Seeing the deceased in the company of Tinny, the mother of the deceased who was also present in the market got enraged and forcibly took the deceased to her residence. On the same day i.e. 19.04.1999 at about 08.10 P.M. Tinny received a SMS from a servant employed at the house of the deceased to the effect that the deceased tried to commit suicide when her family members forced her to end her relationship with Tinny. Tinny handed over the letters Ex.DW-4/1 to Ex.DW-4/17 written by the deceased to him. 21. Relevant would it be to note that the order dated 03.12.2005 passed by the learned Trial Court records that the jail meeting record sought to be summoned by the accused has been weeded out by the jail authorities. 22. At this juncture, it would be appropriate to note the contents of the letters Ex.DW-4/1 to Ex.DW-4/17 referred by the accused in the afore-noted written arguments filed by him. 23. The relevant portion of the letter Ex.DW-4/1-2 reads as under:- “Dear Tinny Crl.A.No.433/2007 & 747/2007 Page 12 of 66 I am dying to meet you see again I started crying. But I know my life can never be happy. Something is always present to disrupt our happiness and conesien. Varun shall tell you many things which would prove that I forgot you completely over there, that I am wrong you will beat me, scold me. I have decided never to say anything to you. Because you are just a expectation box who just expects and never stand to the expectation of others Tinnu now during these 18 days I have really made up my mind not to say anything to you. I know I am true and I love you and now I don‟t care whether you feel/realise it or not. Actually he just told me what he is going to tell you so just a small truth is given below....” (Emphasis Supplied) 24. The relevant portion of the letter Ex.DW-4/3-5 reads as under:- “....b) I felt there was no harm because when I stayed idle at home. I used to start crying just as I started sending you kisses. (Mamiji saw those tears, the very first day) (Emphasis Supplied) 25. The relevant portion of the letter Ex.DW-4/6 reads as under:- “Our relations have become so much strained that I fear someday _______ My brain is not working. Sorry Tinnu I am unable to write this letter. I am (complete) crying for u babe” 26. The relevant portion of the letter Ex.DW-4/7 reads as under:- “....You can never understand me. Really, I know you, my life would just end in making trials to get you completely.....” Crl.A.No.433/2007 & 747/2007 Page 13 of 66 27. The relevant portion of the letter Ex.DW-4/8 reads as under:- “...I am really fed up. Please give me freedom from this life and let me float free in that hell of my follies.” 28. A reading of the letters Ex.DW-4/1 to Ex.DW-4/17 brings out that whosoever Tinnu @ Tinny was, if the letters were in the hand of the deceased, the two were emotionally involved at some point of time but relations had soured. 29. During the trial, the appellant wrote numerous letters to the family members of the deceased including the letters Ex.DW-5/PA and Ex.DW-5/PB which he admitted as having written by him when he was cross-examined as DW-5; appellant having chosen to examine himself as his own witness. 30. The letter Ex.DW-5/PA is addressed to the mother of the deceased i.e. Uma Garg. The said letter records that ten under-trials got various reliefs from the courts due to the written arguments prepared by him i.e. the appellant. Relevant would it be to note the following portion of the letter Ex.DW-5/PA:- “You can receive at any time all the letters (about 50) written by the baby or other articles concerned with the baby from me as per your convenience.” (Translated Version) Crl.A.No.433/2007 & 747/2007 Page 14 of 66 31. The letter Ex.DW-5/PB is addressed to the parents of the deceased, namely Anil Garg and Uma Garg. The relevant portion of the letter Ex.DW-5/PB reads as under:- “...Thus, as I have been involved in great works, similarly you (Umaji) have validated your name by not presenting my acceptance of the crime in the honourable court. However, it is not sufficient for my release.... Anil ji, you please do not worry about the application (under section 91 Cr.P.C.). It is not very deep conspiracy. However, with a view to prove the case and for giving a gift of efficiency, ability and expertise of this Eklavaya to his respectable Guru Dronacharya (Shri R.N. Mittal), a confusing situation has been created. The truth is that I have managed to get this confidential information that whole records of the visits has been weeded out/destroyed. After this, I filed an application before the court of CJ-3 and CJ-4 Superintendent on 22.8.05 requesting for the visits records for verification....On 01.09.05, I received the same reply which I had obtained from some reliable sources. Then, on 05.09.2005, I filed an application in the honourable court in which I asked for the records (Tinnu @ Tinni).....In my view, you should now forgive me and get me released after contacting Shri K.C. Lohia. If you wish, I can address a letter to Lohia Saheb and confess my crime and you can get this letter read out to him at your personal level. However, Mittal Saheb can tell you the way to change the section 302 into 304, thus reducing the imprisonment period to 10 years. You should pray to him on my behalf.....With mutual discussion, beneficial circumstances can be created for both of us..... Divya Uma ji, .....I again repeat that for the tragic and untimely end of the baby, I am not the only person responsible but there are others also responsible for it. Certainly, there is no repentance for this severe sin....She is, like always, still alive in my personality, my existence. I still have full respect, affection, dedication and loyalty in my heart for you (all fours) Crl.A.No.433/2007 & 747/2007 Page 15 of 66 and its proof is that the baby is still my soul. ....Till this body or soul exists and till Priyanka rests in this soul, you are hundered per cent safe. I am sure that Priyanka will not only be an integral part of my soul till several life of the universe, but she will be my soul....” (Emphasis Supplied) 32. At the trial, the prosecution examined 19 witnesses. 33. Anil Garg PW-2, the father of the deceased, deposed on the lines of the statement Ex.PW-2/A given by him to the police. Additionally, he deposed that the police had seized the knife recovered from the possession of the appellant and the shirt and vest worn by the appellant when he committed the crime. 34. During cross-examination, on being questioned about the inmates of the house, he stated (Quote): ‘Sunil Garg and Satish Garg are my real brothers. It is correct that my brother Satish Garg has been living on the ground floor of the H.No.A-24 while other brother Sunil Garg has been living in H.No. A30 in Rama Road. Vol. On that day they had gone to distribute marriage cards....My younger brothers Satish and Sunil had not come at the spot vol. they had gone to distributed the marriage invitation card in respect of marriage of deceased.’ On being questioned about the time of the confinement of the deceased in the bathroom, he stated (Quote): ‘My wife Uma Garg and my daughter Priyanka had gone for shopping on that day at about 5 pm in Crl.A.No.433/2007 & 747/2007 Page 16 of 66 a car with the driver. It took about 30/45 minutes after arrival of my wife and daughter from the shopping in the incident of confinement of my daughter in the bathroom came to my notice’. On being questioned about the door of the bathroom, he stated (Quote): ‘Myself and my family members tried for about 20/30 minutes to open the door of the bathroom and thereafter I informed he police. We did not try to brake open the door at our level before arrival of the police....All the police officials together forced the door to break open and in this process inside bolt of the bathroom were broken and the door was open.’ On being questioned about the relations between the accused and his family, he stated (Quote): ‘Uttam Kumar accused started teaching children in my house 8/10 years back. My daughter Priyanka and my elder son Varun together taking teaching from accused Uttam Kumar.’ We had only relationship of teaching my children and had no other family intimacy with him.’ On being questioned about the relations between the deceased and the accused, he stated (Quote): ‘We had no reason to have suspicion of any kind of relation between the accused and the Priyanka and it is correct that accused used to treat Priyanka as his daughter.’ On being confronted with the letters Ex.DW-4/1 to Ex.DW-4/17, he denied that the said letters were in the handwriting of the deceased. He denied Crl.A.No.433/2007 & 747/2007 Page 17 of 66 the suggestion that the deceased was having an affair with a boy named Tinnu @ Tinny and that his family objected to the said relationship; that on 19.04.1999 the deceased met said boy in the market; that when the deceased refused to end her relationship with Tinny he and his son Varun committed the murder of the deceased in a fit of fury; that thereafter they called the appellant from his residence and asked him to take the blame for the murder of the