State v. Saida & Anr.

1. Present criminal leave petition has been filed on behalf of the State challenging the judgement dated 3rd August, 2019 passed by Additional Sessions Judge (North East), Karkardooma Courts, Shahdara, Delhi acquitting the accused-respondents in FIR No. 203/2016 registered with Police Station Seelampur, Delhi under Sections 302/34 IPC.

2. The relevant facts as noted by the Trial Court are as under:- “1. On 12.03.2016, an information was received at PS Seelampur at about 4:00 am, regarding admission of a girl in brought dead condition in LNJP Hospital. DD No. 8B was recorded at the PS in this regard. As per DD No. 8B, Duty Ct. Ajay had given telephonic information that Gulshan D/o Late Meenu, R/o D-1/21, New 2020:DHC:533-DB Seelampur, Delhi, aged about 20 years, was got admitted in LNJP Hospital in unconscious condition by her brother Munna and that doctor concerned had declared her brought dead vide MLC No. EDC-9914. xxx xxx xxx xxx

8. In pursuance to the order dated 29.07.2016 passed by my learned Predecessor, charges under Section 302 read with section 34 IPC was framed against both the accused persons, to which they pleaded not guilty and claimed trial.”

3. Ms. Aashaa Tiwari, learned APP for the State contends that the Trial Court failed to appreciate that Israr @ Guddu (PW-21) and his wife Kamar Jahan (PW-24) had supported the case of the prosecution. In view of the aforesaid, she states that the impugned judgment be set aside and the accused-respondents be convicted.

4. Having perused the leave petition as well as the evidence on record, this Court finds that the testimony of Israr @ Guddu (PW-21) is full of material contradictions and does not inspire confidence. This Court is in agreement with the contradictions pointed out by the Trial Court in the testimonies of Israr @ Guddu (PW-21) and Kamar Jahan (PW-24). The relevant portion of the impugned judgment on this aspect is reproduced hereinbelow:- “67. However, the testimony of this witness, when considered carefully in the light of all the facts and circumstances emerging on record from the testimonies of other prosecution witnesses and the documents proved during trial, does not inspire confidence of the Court for several reasons. Firstly, said witness stated during his chief examination itself that after 1-2 hours during that night, he came to know that Gulshan had been killed by these two accused persons. He also stated that he got frightened and after locking his room, he had gone to his native village. During his crossexamination, he testified that he had left the tenanted room at about 4:30 am and he had heard about death/murder of Gulshan at about 8:00 am from public persons while he was present near Seelampur puliya, Chauhan Bangar and also that PS Seelampur was about 50 steps away from the said place. He admitted that he did not visit PS Seelampur to lodge report about murder of Gulshan and also did not tell anybody about it and also did not send any letter and did not make any call to the police even after reaching his village. The said conduct on the part of PW-21is found to be quite unnatural and creates doubt in the version given by him during trial. In case, sequence of facts happened in the manner as deposed by him, the natural reaction of any normal person, going by the standard of reasonable and prudent person, would have been to approach the local police and to make statement before them, rather than, fleeing away to his native village as is shown to have been done by this witness. This is more so when witness had already acquired knowledge of death/murder of Gulshan at a place, which was situated at a distance of 50 steps away from PS Seelampur. Even if it be presumed for the sake of arguments that witness got frightened as claimed by him, the next step which was expected from him under normal circumstances, was to return back to Delhi as soon as possible and to visit the PS for making statement before the police or at least to intimate the local police about the relevant facts which were within his knowledge through some letter or by any other mode of communication from his native village in case he was not gathering enough courage to come back to Delhi. What has come on record during testimony of PW-21 is that he had returned back to Delhi only on 01.07.2016 i.e. after a considerable gap of more than 3½ months after murder of Gulshan and only thereafter, his statement is shown to have been recorded by the IO. Secondly, the considerable delay in recording the police statement of PW-21 could not be sufficiently explained either by PW-21 or by other relevant prosecution witnesses including PW-26 who is IO of the case. Thirdly, PW-4 has deposed during his cross-examination that when they had gone to third floor of their house for taking dinner, their tenant Guddu i.e. PW-21 was present at 2nd floor and his family members were not present in the house at that time but when they came to ground floor, his tenanted room was found locked. PW-21 has also admitted during his cross-examination that his family members were not present in the tenanted room at Delhi and they had gone to village on 11.03.2016. In view of this, the conduct of PW-21 in locking the tenanted room and fleeing away to his native village in clandestine manner without informing anyone either in the same house or even any other person of the same locality and that too during late night hours and without any justifiable ground, leaves much to be desired on his part and puts needle of suspicion upon him as well. Fourthly, it has been the case of prosecution itself that the family members of Gulshan including both these accused were opposed to her relationship with PW-21 Israr @ Guddu. It is also the case of prosecution that boy side were supposed to come to their house for fixing date of marriage of Gulshan on next day morning and Gulshan had visited the tenanted room of PW-21 during the intervening night. PW21 himself has admitted during cross examination that he wanted to marry Gulshan. All these facts need to be considered in the light of testimony of DW-1 Kausar who categorically testified that Gulshan had told her family members that PW-21 was after her and wanted to marry her but she (Gulshan) had refused to marry him (PW-21) and told PW-21 that she was happy with her marriage proposal with Bhure. Relevant portion of testimony of DW-1 remained unchallenged from the side of prosecution as not even a suggestion was put to her denying the aforesaid facts. Rather, DW-1 reiterated during her cross-examination that she was suspecting PW-21 to be the killer because he was having an affair with Gulshan and wanted to marry her but she was not ready to marry with him. In this backdrop, the defence raised by accused persons that PW-21 could have been the perpetrator of the crime, could be possible one. Fifthly, the facts as emerging on record during trial, would suggest that PW 21 was not totally a stranger to the police or a layman who may not have garnered enough courage to present himself before the police. Rather, it is duly shown from the record that said witness was running a tea stall in the jurisdiction of PS Seelampur, as has come in the testimony of PW 18 SI Manoj Kumar Tomar. PW 18 rather volunteered that Ct. Sachin (PW 19) was previously knowing Israr (PW21) as he was running tea stall in the area of his beat and this is how, Ct. Sachin had identified Israr when they had visited his house situated in his native village. Same would clearly show that PW21 had easy access to PS Seelampur during the relevant period and thus, nothing had prevented him from visiting PS immediately after he came to know that Gulshan was murdered by her mother and sister. Sixthly, the relevant part of statement of PW21 to the extent that he came to know that Gulshan was killed by these two accused persons, is based upon hearsay, in as much as, he was not even able to disclose the names of public persons from whom he had heard about the death/murder of Gulshan during his cross examination. Seventhly, there are major contradictions appearing in the testimony of PW21 vis-a-vis the prosecution story, in as much as, PW21 stated that he had come to know that the death/murder of Gulshan and the names of her murderers at 8 am on 13.3.2016 but the prosecution story says that the local police was clue less by that time. Another contradiction as came to record is that PW21 stated that his statement was recorded by police only after he returned back to Delhi. As contrary thereto, PW18 has deposed that statement u/s 161 Cr. P.C. of PW21 was recorded at his native village on 1.7.2016 by him. Eighthly, PW21 deposed during cross examination dated 29.8.2017 that it took about 5 hours for him to reach his village from Delhi and also that he had reached his village at about 2 pm on 13.3.2016 but said part of his testimony is contradicted by his wife namely Ms Kamar Jahan (PW24) who deposed during her cross-examination that she was told on telephone by her husband at about 2/2.30 pm about murder of Gulshan by these two accused persons and her husband had reached the village at about 4 pm, meaning thereby that PW21, as per testimony of PW24, had not reached his native village till 2 pm." (emphasis supplied)

5. As far as the testimony of Kamar Jahan (PW-24) is concerned, her entire testimony is admittedly based on hearsay. This witness was never at the place of incident on the date of the incident. The relevant portion of the Trial Court’s findings on this aspect are reproduced hereinbelow:- “68. As regards the testimony of PW24, it is relevant to note that her entire testimony is based upon hearsay and does not have any effect on the outcome of the present case as undisputedly, she was not present even in Delhi during the aforesaid intervening night when murder of Gulshan took place. Her entire testimony is based upon as to what was purportedly told to her on telephone by her husband i.e. PW21. What is relevant to note from the testimony of said witness is that she admitted to have been told by brother of deceased Gulshan that her husband (PW21) used to talk with deceased and he (brother of deceased) objected to it. Not only this, she also testified that she was having suspicion about relationship of her husband with Gulshan but claimed that no quarrel used to take place on this issue between her and her husband. Said portion of her testimony is quite unnatural and unbelievable as the first human reaction as a wife after coming to know that her husband was having any extra marital affair with some other girl, would be to raise an objection with husband to such relationship and to ask him not to continue with such relationship. For all these reasons, Court is not inclined to believe the testimony of PW24 for the purpose of corroborating the prosecution story during trial.” (emphasis supplied)

6. In view of the aforesaid, the testimony of Israr @ Guddu (PW-21) or his wife Kamar Jahan (PW-24) cannot be relied upon to convict the accusedrespondents as they suffer from material contradictions and do not inspire confidence.

7. Consequently, this Court is of the opinion that the impugned order calls for no interference. Accordingly, the present leave petition, being bereft of merit, is dismissed. MANMOHAN, J SANGITA DHINGRA SEHGAL, J JANUARY 27, 2020 SB/rn