Full Text
HIGH COURT OF DELHI
NAVI .....Appellant Represented by: Mr.Sumeet Verma, Advocate with Mr.Mahinder Pratap Singh and
Mr.Vinay Kumar, Advocates.
Represented by: Mr.Prithu Garg, APP for the State.
HON'BLE MS. JUSTICE POONAM A. BAMBA MUKTA GUPTA, J.
JUDGMENT
1. By this appeal, the appellant challenges the judgment of learned Trial Court dated 08th May, 2018 whereby the appellant was held guilty for murder of one Gudiya (“deceased”). The appellant also challenges the order on sentence dated 17th May, 2018 whereby the appellant was directed to undergo rigorous imprisonment of life along with Fine of ₹5,000/- in default whereof, simple imprisonment for 1 year for offence punishable under Section 302 of the Indian Penal Code, 1860 (“IPC”).
2. Brief facts of the prosecution case are that on the intervening night of 15th -16th April, 2017, at about 1.50 AM, the appellant came to ASI Bishan Singh (PW-6) and ASI Dharam Chand (PW-7) who were at picket duty at Mukandpur Chowk and informed them that he had strangulated the GUPTA neck of his bhabhi/deceased by chunni and killed her. This information was passed to the PCR Incharge ASI Jagdish who passed the information to duty officer Rang Bahadur (PW-5), which was recorded vide DD No.7A (Ex.PW-5/A) and was marked to ASI Om Prakash (PW-12), who reached the Mukandpur Police Post where ASI Bhishan Chand and ASI Dharam Chand produced the appellant before him. Thereafter, ASI Om Prakash along with the appellant went to the spot i.e. H.No.648, B-Block, Gali No.16, Mukandpur Part-I, where dead body of one female with a chunni around her neck was found on the staircase of the first floor of the house. Crime team was called at the spot and exhibits were seized and thereafter, the dead body was sent to the mortuary at BJRM Hospital. Statement of the husband of deceased Ramjani (PW-11) was recorded (Ex.PW-11/A) on which rukka (Ex.PW-12/A) was prepared and FIR No.247/2017 dated 16th April, 2017 under Section 302 IPC was registered at PS Bhalswa Dairy (Ex.PW-5/B). After interrogation, the appellant was arrested vide arrest memo Ex.PW-9/E and his disclosure statement (Ex.PW-9/G) was recorded. Thereafter, the dead body was sent for post mortem examination.
3. Dr. Niranjan Kumar Gunjan conducted the post mortem examination on the dead body of the deceased on 16th April, 2017 and tendered the post mortem report Ex.PX. It was opined: “EXTERNAL INJURIES:
1) Ligature mark: A reddish brown coloured abraded ligature mark was present around the neck, completely encircling the neck. In the centre, mark was 2.[2] cm broad and 06 cm below chin, placed at the thyroid prominence. On left side, mark was going horizontally backward. It was 2.[1] cm broad and present GUPTA 5.[5] cm below angle of left mandible, and further it was 02 cm broad and 07 cm below left mastoid process. Further the mark was going towards the back of neck. On right side, mark was going horizontally backward. It was 02 cm broad and present 05 cm below angle of right mandible, and further it was 03 cm broad and 06 cm below the right mastoid process. Further the mark was going towards the back of neck. On the back of neck mark was 0.[7] cm broad at a point situated 08 cm below the external occipital protuberance.
2) Reddish scratch abrasion, measuring 0.2x0.1cm, was present over right foot, situated 05 cm away from the medial malleolus. Ligature material: Not Present.
INTERNAL EXAMINATION ….. B) Neck Subcutaneous tissue: The soft tissues underlying ligature mark were showing contusions at places bilaterally. Pharynx, Larynx and Trachea: Tracheal mucosa showed petechial hemorrhages and congestion. Fracture of left greater horn of hyoid bone associated with surrounding contusion was present. Thyroid cartilage was intact. Thyroid gland was grossly normal in appearance. Oesophagus and blood vessels: Unremarkable. OPINION: Cause of death in this case is asphyxia, secondary to constriction of neck structures with a ligature material (Ligature Strangulation). Time since death: Within 12 hours at the time of preservation of dead body in mortuary. Total inquest papers: 08 (Eight) Papers. Total pages of PM report: 03 (Three).” GUPTA
4. After completion of investigation, charge-sheet was filed and the appellant was charged for offence punishable under Section 302 IPC and to prove its case, prosecution examined 15 witnesses.
5. Learned counsel appearing on behalf of the appellant assailed the impugned judgment on the grounds that the present case was based on circumstantial evidence wherein motive is of paramount importance, and the prosecution having failed to establish any motive, is a missing link in the chain of circumstances. It was contended that allegedly the appellant suspected the character of the deceased that the deceased had relationship with her husband‟s business partner Lalla, however, no investigation in this regard was ever conducted. Learned counsel further submitted that the prosecution relied upon the extra judicial confession made by the appellant before the police which was recorded vide DD No.7A, which was rightly discarded as inadmissible even by the learned Trial Court in terms of Sections 25/26 of the Indian Evidence Act, 1872, and reliance was placed on the decision in AIR 1966 SC 119 Aghnoo Nagesia vs. State of Bihar. It was further contended that the recovery of dead body of the deceased would not be admissible in terms of Section 27 of the Evidence Act as the dead body was not recovered pursuant to the disclosure statement of the appellant (Ex.PW-9/G) and there is no recovery memo as well. Even otherwise, the dead body was found on the common staircase of the house where about 9-10 persons residing and thus, the place of recovery was not within the “exclusive knowledge” of the appellant and rather was an “open and accessible place”. It was further contended on behalf of the appellant that the doctor who had examined the appellant and taken his nail clippings GUPTA was never examined by the prosecution and even the MLC of the appellant was not proven in accordance with law. Even as per the post mortem report (Ex.PX), only one external injury other than the ligature mark i.e. reddish scratch abrasion was present over right foot of the deceased, however, it is contended that there is neither any evidence to show how old was the abrasion nor any evidence to show how old was the skin tissue found on the nail clippings of the appellant. It was submitted that even if it is presumed that the said abrasion on the deceased‟s foot was connected to the skin tissue on the nails of the appellant, the same cannot be connected to the cause of death of the deceased. It was further contended that the doctor who conducted the post mortem examination was never shown the chunni (Ex.PW-14/Article-2) for his opinion. It was pointed out that the prosecution tried to connect the said chunni with the tape lifted from the neck of the deceased by way of FSL report (Ex.PW-13/J[1]) wherein, fibres found on the said tape were found similar with the fibres found in the chunni. However, it is submitted that the sole witness of the seizure memo of nail clippings and adhesive lift i.e. Ct. Mahender and as also the doctor who lifted the adhesive tape were never examined by the prosecution. Further, no prosecution witness had identified the adhesive doctor‟s tape and, therefore, the same is doubtful. It was further submitted that there was no bodily fluid found on the chunni and kurta of the deceased and as per Dr. Sarabjit Singh (PW-14), cells can be transferred by touch itself, and thus, it is possible that the appellant simply touched the deceased on her kurta and chunni to check as to what had happened to her on seeing her in an unconscious condition of the staircase. In terms of the aforesaid GUPTA submission, it is submitted that the circumstances as alleged by the prosecution do not find a complete chain and thus, the appellant deserves to be acquitted being given the benefit of doubt.
6. On the other hand, learned APP appearing on behalf of the State submitted that the impugned judgment of learned Trial Court is based on proper appreciation and facts of the case and thus, be upheld and the present appeal be dismissed. To buttress his submissions, learned APP relies upon following facts: i. That the appellant himself informed about the incident to ASI Bishan Singh (PW-6) and ASI Dharam Chand (PW-7) on the intervening night of 16th April, 2017 which was also recorded vide DD No.7A (Ex.PW-5/A). ii. That pursuant to the information given by the appellant, the police went to the spot i.e. House No.648, Gali No.16, B Block, Mukandpur Part-I where at the staircase of the first floor, dead body of the deceased was found with a chunni tied around her neck. iii. The appellant was arrested vide memo Ex.PW-9/E and was taken to BJRM Hospital for medical examination where nail clippings of the appellant were taken by the doctor which was seized vide memo Ex.PW-8/A and as per the FSL report (Ex.PW-13/J[2]), male DNA profile was generated from the lady kurta of the deceased (Ex.1a) and from the chunni of the deceased (Ex.5). Further, female DNA profile was also generated from the nails of the appellant. Furthermore, the DNA profile generated from the GUPTA nails of the appellant tallied with the DNA profile generated from the nails of the deceased. iv. That as per the FSL (Physics) report (Ex.PW-13/J[1]), fibres found in the doctor‟s tape containing fibres lifted from deceased‟s neck (Ex.3) and from black chunni (Ex.5) were found similar in respect of colour and microscopic appearance.
7. Learned APP further submitted that although the statement of the appellant made to police official would not be admissible as extra judicial confession, however, the same would be admissible under Section 27 of the Evidence Act to the extent that it led to the recovery of the dead body and of the weapon of offence (chunni), and reliance was placed on a decision in (1961) 1 SCR 14 State of UP vs. Deoman Upadhyaya. It was further submitted that the conduct of the appellant in approaching the police picket and giving information about the incident and subsequently leading police to the spot and getting the dead body and chunni recovered would also be relevant under Section 8 of the Evidence Act, and in this regard, reliance was placed on a decision in 2022 SCC OnLine SC 883 Shahaja @ Shahajan Ismail Mohd. Shaikh vs. State of Maharashtra.
8. Having heard both the parties at length and perusing the record, the following evidence emerges.
9. Ramjani (PW-11) who was the husband of the deceased deposed that he did not remember the date and that it was summer season and, on that day, he went to sleep after taking his food at about 1.00 AM and he was woken up by someone on which he went to the staircase where he found his wife lying. He further stated that on seeing his wife, he became GUPTA unconscious and when he regained consciousness, he got to know that the deceased had died. As he was resiling from his previous statement, he was declared hostile and in his cross examination, he denied having made any statement to the police (Ex.PW-11/A). He stated that he along with his wife/deceased and four children used to reside on the first floor of the house and his two brothers Navi/appellant and Rafeeq used to reside on the ground floor of the same house.
10. ASI Bishan Singh (PW-6) deposed that on the intervening night of 15-16th April, 2017 at about 1.50 AM, he was on picket duty with ASI Dharam Chand at Mukandpur Chowk when one person who revealed his name Navi son of Mehandi Hassan resident of House No.648, Gali No.16, B Block, Mukandpur Part-I informed that he had strangulated the neck of his bhabhi Gudia by chunni and killed her at his home. He informed the facts to Incharge of PCR ASI Jagdish who informed the duty officer of PS Bhalswa Dairy. After sometime, ASI Om Prakash reached the picket and he presented the appellant to ASI Om Prakash and thereafter, ASI Om Prakash along with the appellant and his staff left for the appellant‟s house.
11. ASI Dharam Chand (PW-7) corroborated the version of ASI Bishan Singh (PW-6).
12. ASI Om Prakash (PW-12) deposed that on the intervening night of 15-16th April, 2016, he received information recorded by DD No.7A on which he along with Ct. Mahender and Ct. Sudhir went to Mukandpur Police Post where he met ASI Bishan Chand and Dharam Chand who produced the appellant to him. He stated that the appellant informed him that “maine meri bhabhi ka murder gala got kar kar dia hai”. Thereafter, GUPTA he along with the appellant and his staff went to House No.648, Gali No.16, B Block, Mukandpur Part-I where one dead body of a female having chunni around her neck was found on the staircase of the first floor of the said house. Thereafter, Insp. Vinay Kumar reached the spot and further investigation was handed over to him.
13. Insp. Vinay Kumar (PW-13) deposed that on receipt of information on the intervening night of 15-16th April, 2017, he along with the SHO reached House No. 648, Gali No.16, B Block, Mukandpur Part-I where one dead body of a female having chunni around her neck was found on the staircase of the first floor of the said house. Crime team was called at the spot and search of the dead body was conducted by W/Ct. Deepak and a female member of the house of the appellant. The deceased was found wearing a kurti and a purse containing two sim cards of Airtel and Idea and one memory card of Hitech was also found, which were seized vide memo Ex.PW-9/A. One artificial broken mala of golden colour was also seized vide memo Ex.PW-9/B. The appellant led the police party to the roof of the house from where one broken mobile of black and yellow colour of make Nexus was recovered which was seized vide memo Ex.PW-9/C. Black colour chunni which was found around the neck of the deceased was also seized vide memo Ex.PW-9/D. Thereafter, the dead body of the deceased was shifted to BJRM Hospital and the post mortem was conducted and after the post mortem examination, the dead body was handed over to the relatives of the deceased (Ex.PW-11/C). Thereafter, he interrogated the appellant and arrested him vide memo Ex.PW-9/E and recorded his disclosure statement (Ex.PW-9/G). He prepared the site plan (Ex.PW- GUPTA 13/H) at the instance of Ramjani. Thereafter, the appellant was taken to BJRM hospital for medical examination. After completion of investigation, charge-sheet was filed. In his cross examination, he stated that he did not serve any notice on Lala during investigation. He denied the suggestion that Ramjani had given his statement to him.
14. As per the FSL (Physics) report (Ex.PW-13/J[1]), fibres found in doctor‟s tape (Ex.3) and fibres of black chunni (Ex.5) were found similar in respect of colour and microscopic appearance. Further, as per FSL (Biology) report (Ex.PW-13/J[2]), blood and semen were not detected on the clothes of the deceased, however, skin tissue material was detected on nail clippings of the appellant. Further, as per the DNA analysis, male DNA was generated from the kurta of the deceased (Ex.1a) and chunni (Ex.5). Female DNA was also generated from the nails of the appellant (Ex.4).
15. During the prosecution evidence, on 20th November 2017, learned counsel appearing on behalf of the appellant Navi in the presence of appellant, who was produced from judicial custody admitted the postmortem report (Ex.PX).
16. In his statement under Section 313 of the Criminal Code of Procedure, 1973 (“Cr.P.C.”), appellant Navi admitted that the deceased and Ramjani along with their four children were residing on the first floor the house and the appellant himself along with his brother Rafiq was residing on the ground floor of the same house. He admitted that he was arrested vide memo Ex.PW-9/E and his personal search was conducted vide memo Ex.PW-9/G, however, he further stated that he was falsely implicated in the case and that he did not make any disclosure statement in the case.
17. As noted above, the investigating agency was set into motion after the appellant himself approached the police picket where ASI Bishan Singh (PW-6) and ASI Dharam Chand (PW-7) were on duty at about 1.50 a.m. in the intervening night of 15th /16th April 2017. A PCR whose Incharge was ASI Jagdish was also stationed near the police picket. At about 1.50 a.m., when Navi, son of Mehandi Hassan, resident of H.No.648, Gali No. 16, B Block, Mukand Pur Part-I informed ASI Bishan Singh and ASI Dharam Chand that „maine apni bhabhi gudiya ka chunni se gala ghot kar murder kar diya hai‟. This information was relayed through the PCR and recorded vide DD No. 7A at 01.53 a.m. on 16th April 2017. The police officer along with the appellant reached the spot where they discovered the dead body of Gudiya. Thereafter, statement of Ramjani, husband of the deceased and the brother of the appellant was recorded on which FIR was registered. Undoubtedly, this statement made by the appellant to ASI Bishan Singh and ASI Dharam Chand which is clearly inculpatory amounting to a confession, is not admissible in terms of Sections 25/26 of the Indian Evidence Act, however, the fact that he went to the police at midnight and surrendered is admissible under Section 8 of the Indian Evidence Act, as held by the Hon‟ble Supreme Court in the decision reported as (2023) SCC OnLine SC 531 Digambar Vs. The State of Maharashtra:- GUPTA
18. Further the fact that the appellant had knowledge of the death of Gudiya and he led the police party to the place where her dead body was lying is admissible under Section 27 of the Indian Evidence Act. The corroboration to this conduct of pointing out the dead body and the manner of her death, is received from FSL report Exs.PW-13J-1, J-2 and 14/A. On the medical examination of the appellant, DNA was extracted from the nails of the appellant and the alleles in the said Exhibit 4 i.e. the nails of the appellant matched with the alleles from the source Exhibit „1a‟ lady‟s kurta of the deceased and Exhibit 5 i.e. the lady‟s chunni from the scene of crime. Further, the DNA profile generated from the source Exhibit 4 i.e. nails of the appellant also matched with the DNA profile generated from GUPTA source of Exhibit 2 which were the nails of the deceased. Learned counsel for the appellant has contended that merely by touching, the expert would be in a position to retrieve the DNA profiling, however, the present is not the case where there was any occasion for the appellant who was the brother-in-law of the deceased to have touched his brother‟s wife or be in close contact with her, resulting in his nails having the DNA profiling of the deceased. Further, for DNA profiling, nano technology was not used, which could have given positive results on mere touch. Ramjani (PW-11) clearly stated that he along with his wife and four children stayed on first floor of the house whereas Navi and Rafeeq stayed at the ground floor of the house, thereby clearly having two separate kitchens with no day to day interactions.
19. It is well settled that if the evidence of conduct is strong enough and the same is corroborated from material particulars, conviction can be based thereon. The Hon‟ble Supreme Court in the decision reported as (2005) 7 SCC 714 A.N.Venkatesh & Anr. Vs. State of Karnataka held as under:
20. The next point strenuously urged by the learned counsel for the appellant is that the Doctor who was competent to depose has not appeared in the witness box and thus, the post-mortem report cannot be read in evidence. Undoubtedly, the post-mortem Doctor is not an Expert as provided in Section 293 CrPC whose report would be per se admissible in evidence without calling the said witness and thus, the said witness needs to appear in the witness box, unless the document is admitted in evidence by the prosecution or the accused under Section 294 CrPC then, no formal proof of the same is required and the document can be read in evidence. As noted above, the post mortem report was admitted in evidence by the learned counsel for the appellant in the presence of the appellant vide order dated 20th November, 2017. Thus, the post mortem doctor was not required to step into the witness box to prove the said document and was rightly exhibited as Ex.PX. Further, if the appellant denied to cross-examine the said doctor, he could have asked for the same which was not done by the appellant during the course of trial. Section 294 CrPC reads as under:
21. Further, it is also settled that in a case of circumstantial evidence, the circumstances that the deceased died homicidal death can also be inferred from the attending circumstances. As the post-mortem report Ex.PX has been admitted in evidence vide order dated 20th November 2017, the cause of death was strangulation has been proved beyond reasonable doubt. Further, even though, no subsequent opinion qua the chunni being used as a ligature mark was taken from the expert, however, the same gets connected with the offence committed, by the FSL report as noted above, for the reason, the fabric of the chunni was found on the neck of the deceased and alleles from the deceased DNA profiling were accounted for in the chunni recovered. The FSL report Ex.PW-13/J-2 reads as under: DESCRIPTION OF PARCELS & CONDITION OF SEALS SEALS INTACT AS PER F.A.'s LETTER Sealed envelope: 02 Sealed cloth parcel: 03 Total 05 (five)
DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel „I‟: One sealed cloth parcel sealed with the seal of "NKG GUPTA BJRM HOSPITAL" containing exhibits " 1a", “1b" & “1c”. Exhibit '1a': Lady kurta of deceased, Gudiya Exhibit '1b': Lady salwar of deceased, Gudiya. Exhibit '1c': Brassier of deceased, (}udiya. Parcel '2': One sealed envelope sealed with the seal of ''NKG FMT BJRM HOSPITAL" containing exhibit '2'. Exhibit '2: Few nail clippings of deceased. Gudiya. Parcel '4': One sealed cloth parcel sealed with the seal of ''SEAL-1 CASUALITY BJRM HOSPITAL DELHI" containing exhibit '4'. Exhibit '4': Two nail clipping of accused, Nabi. Parcel '5': One sealed cloth parcel sealed with the seal of "V.K.S." containing exhibit '5'. Exhibit '5': Lady chunni from the scene of crime.
BIOLOGICAL EXAMINATION
1. Blood could not be detected on exhibits '1a', „1b', „1c', '2‟, '4' & '5'.
2. Semen could not be detected on exhibits „1a', „1b' & „1c'.
3. Skin/Tissue material was detected on exhibit '4'.
DNA EXAMINATION The exhibits „1a‟, „1b‟, „1c‟, „2‟, „4‟ & „5‟ were subjected to DNA isolation. DNA was isolated from the source of exhibits „1a', '2', '4' &'5‟. However, DNA could not be isolated from the source of exhibits „1b' & „1c‟. Identifier plus STR kit was used for PCR amplification and Gene Mapper Idx software was used for DNA profiling (STR Analysis) in each of these exhibits.
RESULT OF DNA ANALYSIS DNA profile of female origin has been generated from the source of exhibit '2' (Nails of deceased, Gudiya). Male DNA profile has been generated from the source of exhibits '4' (Nails of accused, Nabi), „1a' (Lady kurta of deceased, Gudiya) and '5' (Chunni from scene of crime). However, Female DNA profile also has been generated from the source of exhibit '4' (Nails of accused. Nabi).
1. The alleles from the source of exhibit '4' (Nails of accused, Nabi) are accounted (matching) in the alleles from the source of exhibits Ma' (lady kurta of deceased, Gudiya) and '5' (Chunni from scene of crime).
2. DNA profile generated from the source of exhibit '4' (Nails of accused, Nabi) is matching with the DNA profile generated from the source of exhibit '2' (Nails of deceased, Gudiya). Enclosure: Allelic data of the exhibits „1a', '2', '4' & „5' using Amp/f Identifier Plus STR Kit. Note: Remnants of the exhibits have been sealed with the seal of "Dr.
SS FSL DELHI". GUPTA
22. In view of this clinching evidence and the fact that the FSL report qua the alleles of the deceased‟s DNA are accounted for in the alleles generated from the appellant‟s nail clippings, clearly connects the appellant with the offence committed, this Court finds no error in the impugned judgment of conviction and order on sentence.
23. Consequently, the appeal is dismissed.
24. Copy of the judgment be uploaded on the website of this Court and be also communicated to the Superintendent Jail for updation of records and intimation to the appellant. (MUKTA GUPTA) JUDGE (POONAM A. BAMBA)