JUDGMENT
R.S. Sodhi, J.
1. Criminal Appeal No. 909 of 2004 seeks to challenge the judgment and order of the Additional Sessions Judge, Delhi, dated 29.07.2004 in Sessions Case No. 126 of 2002 arising out of F.I.R. No. 270 of 2002, registered at Police Station Samey Pur Badli, vide which order and judgment, the learned judge has held the appellant guilty under Section 302 IPC. Further by his order dated 30.07.2004, has sentenced the appellant to undergo imprisonment for life for offence under Section 302 IPC together with fine of Rs. 10,000/- (Rupees ten thousand) and in default of payment of fine to further Rigorous Imprisonment for one year.
2. The facts of the case as have been noted by the learned Additional Sessions Judge in his judgment under challenge are as follows:
…that on 29.4.2002 on receipt of DD No. 36A, SI Kaushal Ganguli, Ct. Mukesh and Ct. Suneel reached the spot, i.e., in a room situated on the godown of Pradeep Jain behhind dispensary, Village Siraspur where a dead body of a female namely Smt. Nandini, W/o Akshay Kumar, aged 24/25 years was found lying on the floor of the room. Deceased was also having injury marks on the neck and chin. Salwar of the deceased was below the knees. Deceased was wearing two rings in both the ears. Deceased was also wearing rings on the fingers and there was tabeej of white metal with dori on the neck of the deceased. As the deceased was found to have married with the accused five years ago, SDM was informed regarding the death of deceased. SI Kaushal Ganguli made endorsement on the DD No. 36A and got the case registered U/s 302 IPC. Crime Team was summoned at the spot and scene of occurrence was got photographed. As per the direction of SDM, the body of deceased was sent to mortuary of Babu Jagjivan Ram Hospital. SDM A.K. Saxena recorded the statement of mother of deceased namely Smt. Malti Devi and other witnesses and got conducted the postmortem on the body of deceased. During investigation, husband of deceased was interrogated who confessed his guilt and was arrested in this case. Exhibits of the case were got deposited in the FSL, Malviya Nagar, Delhi. After completion of investigation, charge-sheet was filed against the accused.
3. The prosecution in order to establish its case examined as many as 20 witnesses. Of these, PW-1 is Head Constable Parveen Kumar who, as a Duty Officer, recorded the F.I.R. No. 270 of 2002 Exhibit PW 1/A. PW-2, Malti Devi, is the mother of the deceased Nandini. She has testified that Nandini was married to the appellant, Akshay Kumar Pathak, about six years prior to the incident and used to reside at Village Siraspur in godown of Pradeep Jain and that the marriage between Akshay Kumar Pathak and Nandini was solemnized on 14.02.1997. Two children of the family were born of this wedlock. Two years prior to the occurrence, Nandini was assaulted by the accused with an iron rod and Nandini suffered injuries which required ten stitches on her head, however, no case was registered. The accused as also his wife started living together. She further testifies that the accused along with police came to her house and there she was told that some villagers had killed her daughter and ran away. The witness did not believe the story and blamed the accused for having killed her daughter. She thereafter went to the house of the accused and saw the dead body of Nandini lying in a naked condition. She further states that she did not go inside the house but saw the body from the window. Then, the police began interrogating the accused who made a confession and a disclosure and thereafter got an iron pipe recovered from behind the gas cylinder lying in the room. The accused also got recovered one towel lying under takhat. The iron pipe was sealed in a separate parcel and taken into possession. The police obtained her thumb impression on the disclosure statement made by the accused which is Exhibit PW 2/A. The recovery memos are Exhibit PW 2/B and PW 2/C respectively. The dead body of Nandini was sent for postmortem to Jagjiwan Ram Hospital. The body was identified by this witness at the mortuary of Jagjiwan Ram Hospital vide memo Exhibit PW 2/D. After the postmortem, the body was received by this witness and cremated. She claims to have made a statement to the SDM on the following day Exhibit PW 2/E. The police also recorded her statement. In cross-examination, the witness states that she had made no complaint to the police regarding the so-called injury inflicted earlier on her daughter nor any medical documents were prepared with regard to the said head injury. She does not deny that a report had been made six months prior to the incident by the accused against one Rakesh to the effect that Rakesh was making obscene calls on the phone and was teasing Nandini. She admits that the police came and investigated the said complaint against Rakesh and also beaten Rakesh. She goes on to depose that on her visiting the house of Nandini, she was told by the accused that one Rakesh had entered their house illegally and that her daughter Nandini had made a report to the police that Rakesh had entered illegally in their house and that the police had inquired into the same. She further admits that the statement of the accused was recorded by the police at the spot of the incident at 2 o’clock night (2 a.m. of 30.04.2004) which this witness had thumb marked at that time but the statement was not read over to her nor does she know the contents thereof. She also goes on to depose that the accused had great love and affection for Nandini but for the last two years the relationship had soured. She denied the suggestion that it was Rakesh, Balram and Anil who had committed murder of her daughter.
4. PW-3, Ajay Sharma, deposes to the effect that Ved Parkash, his brother, was working as a chowkidar at the kothi of Pradeep Jain at 20/7, Rajpur Road, Delhi and used to reside at godown on the first floor in a room of the said godown of Pradeep Kumar Jain at village Siraspur. Kuldip Sharma was working with Pradeep Kumar Jain, who lives in the same room with his brother Ved Parkash. Kuldip Sharma is also his cousin. A day prior to the date of incident, he had come to Delhi in search of a job and was living with his brother. Akshay Kumar Pathak used to reside along with his wife and two children in another room on the same floor. On the date of incident, i.e., on 29.04.2002, his brother Ved Parkash left the room at 7:30 p.m. and returned at the room at 8 a.m. Akshay Kumar Pathak used to be on duty during the day time and return in the evening at about 8 or 8:30 p.m. On 29.04.2002, Kuldip Sharma was present in the room and Ved Parkash had gone to attend his duty. At that time at around 10 or 10:30 p.m., accused came to the room where the witness was watching television and told him that somebody had raped his wife and murdered her. Accused telephoned Pradeep Kumar Jain and thereafter made a phone call to the police. The police came at the godown. The witness also states that he had also gone to the room of the accused and saw the body of Nandini lying naked. She was not wearing salwar. He goes on to state that he had seen Nandini at the gate of the room at 7:30 p.m. He did not hear any sound of door breaking nor any quarrel between 7:30 p.m. to 10:30 p.m., which time the accused came to their room, nor did he see anybody coming or going from the godown.
5. PW-4, Nitin Kumar, is the photographer who has taken seven photographs from various angles. PW-5, Ved Parkash, deposes that he works as a chowkidar at the residence of Pradeep Jain at Rajpur Road and resides at the godown at Siraspur. He lives on the first floor of the godown. Akshay Kumar Pathak also stays at the godown of Pradeep Jain. He further deposes that generally he is on duty at the house of Pradeep Jain during night. Accused Akshay Kumar Pathak remains on duty during day time. On 29.04.2002, he left his residence from the godown for joining his duty at the house of Pradeep Jain at 7 or 7:15 p.m. When he left his room at Siraspur, the wife of the accused was in her room. He reached Rajpur Road, residence of Pradeep Jain at about 8:45 p.m. At that time, Akshay Kumar Pathak was at the residence of Pradeep Jain at Rajpur Road. After he joined duty at 8:45 p.m., accused left the house of Pradeep Jain for the godown. The accused left on a bicycle. On the following day, after performing his duty, he came to know that the wife of the accused Nandini had been murdered. He does not know if there was any discord between accused and his wife nor does he know that the accused suspected the character of his wife.
6. PW-6, Pardeep Kumar Jain, is primarily a witness to the telephone call received from the accused at about 10 p.m. to the effect that his wife had been murdered. The witness told Kuldip Sharma to call the police. PW-7, Kuldip Sharma, corroborates PW-3, Ajay Sharma, to the effect that the accused disclosed at about 10 p.m. that his wife had been raped and murdered. PW-16 is Inspector Balbir Singh, who is the Investigating Officer, states that on 29.04.2002, he was posted as SHO, Police Station Samey Pur Badli. He received an information vide DD No. 36-A at 10:32 p.m. On receipt of the message, he reached the godown of Pradeep Jain at village Siraspur. SI Ashok Kumar and SI Raghubir Singh were already there. SI Kaushal Ganguli along with Constable Sunil and Mukesh were also there. A dead body of a female, namely, Nandini was lying on the floor naked from the lower half. The salwar was below the knees. There were mark of injury on the chin and the neck of the body. A television was lying on the table with its sound shut of. A radio was playing. On the cot, two children of the accused were sleeping. One of the child was four years old and the girl child was about ten months old. Since the death was within seven years of the marriage, SDM was informed. The case was investigated. Dog squads were summoned and he prepared the site plan Exhibit PW 16/A. the mother of Nandini came to the spot and expressed suspicion on the accused. Her statement was recorded. On 30.04.2002 at about 9:30 p.m., SDM Shri A.K. Saxena, Narela came to the spot. He along with Malti Devi, mother of the deceased, Kuldip Sharma, neighbour and the staff of the SDM went to the mortuary of Jagjiwan Ram Hospital. There, the SDM conducted inquest proceedings and got conducted postmortem on the body of the deceased. At the mortuary, Malti Devi and Kuldip Sharma identified the dead body and the SDM recorded their statement and the body was delivered to Malti Devi. After cremation, Malti Devi came to the Police Station and this witness took her to the spot. Accused was present in his house on the first floor of the godown of Pradeep Jain and was thoroughly interrogated and on sustained interrogation, the accused made a disclosure statement that he had kept the pipe in the corner of the room; and placed towel on the khoonti under other clothes. The statement was reduced into writing Exhibit PW 2/A, signed by the accused and attested by Malti Devi. Pursuant to the disclosure statement, accused got recovered the pipe Exhibit P-1 from the corner of the room as also towel Exhibit P-2. The same were taken into possession vide memo Exhibit PW 2/B and PW 2/C. Thereafter, the accused was arrested and his personal search was taken vide memo Exhibit PW 11/A and statement of Kuldip Sharma and Ajay were recorded. The case property was deposited with the malkhana. He thereafter goes on to depose as to the karyawahi done by him during investigation.
7. PW-17, Dr. R.K. Punia, performed the postmortem on the body of Nandini and found the following injuries:
External injuries:
1. Cresentric shape pressure abrasion was present over left side neck just outer to thyroid cartilage. The size was 1 cm x 0.1 cm. The abrasion was bright red in colour.
2. Pressure abrasion was present over front and left side of neck. Horizontally placed, situated below thyroid cartilage. The size was measuring 7.5 cm x 2.5 cm. Margins were more prominent. On dissection of neck, the tissues underneath injury No. 2 were showing extravasation of blood.
Internal injuries:
1. Head
a. Scalp tissues – intact and congested.
b. Skull bones – intact
c. Brain matter was intact and congested. C/s white matter shows petechial haemorrhage.
d. Base of the skull was intact.
2. Neck
Already describes with injury No. 2. Thyroid cartilage, cricoid cartilage – NAD, tracheal mucosa was intact, there was no foreign body found in trachea/its divisions.
3. Chest
a. Bony cage and ribs were intact.
b. Pleural cavities, lungs, heart were intact and
congested, surface shows petechial haemorrhage.
4. Abdomen and pelvis
All the abdomen and pelvis were intact and congested. Stomach was empty, mucosa was normal. There were no abnormal smells present. Urinary bladder, rectum and uterus were empty. Hymen – old tears were present at places. No fresh tears were present. No semen like substance seen.
Opinion:
All the injuries were antemortem in nature and caused by blunt object.
Death was due to asphyxia as a result of pressure over neck (injury No. 2). Injury No. 2 was sufficient to cause death in ordinary course of nature. Time since death approximate 15 to 18 hours prior to autopsy.
8. PW-19 is Dr. Rajender Kumar, Senior Scientific Officer, FSL, Malviya Nagar, New Delhi. He has produced his report Exhibit PW 16/C. PW-20, A.K. Saxena, Coordinator, Drug D-Addiction, Social Welfare Department, Delhi, is the SDM who conducted the inquiry under Section 176 Cr.P.C. In his statement under Section 313 Cr.P.C., accused took up a defense that he had suspicion that his wife was killed by one Rakesh with his friends because prior to this happening on 1.10.2001, Rakesh with his friends entered his house and tried to rape his wife and a call to this effect was made at 100 number at 8 p.m. and the investigation was take up by SI Gava. The matter was got hushed up by the elder of the village. But after the incident, Rakesh and his friends became inimical towards his wife and had killed her and were falsely implicating him. He tendered into evidence the report Exhibit DW 1/A.
9. The learned trial court on the basis of the aforesaid material came to the finding that a disclosure statement had been made by the accused pursuant whereto, the weapon of offence had been recovered. He also returned a finding that there was no occasion for any other person to enter godown except the accused and the possibility of death having taken place between 9 to 10 p.m. cannot be ruled out. The next circumstance, according to the learned judge, is the disclosure statement confessing his guilt besides the doctor’s opinion that death could have been caused by the weapon discovered at the instance of the accused. Consequently, he held that the circumstances were sufficient to bring home the guilt of the accused.
10. Learned Counsel for the appellant has challenged the aforesaid judgment on grounds that the trial court has taken into consideration inadmissible evidence and has based his judgment on surmises and conjunctures and that the so-called chain of circumstance do not form a complete link so as to lead to the inference and the only hypothesis that it is the accused alone who could have caused the death. He contends that the judgment under challenge cannot be sustained on the touch stone of law.
11. Learned Additional Public Prosecutor, on the other hand, has vehemently relied upon the circumstance of recovery as also on the opinion of the doctor that the weapon of offence recovered at the instance of the accused could have caused the death of Nandini. She also strongly relies upon the fact that the presence of the accused at 10 o’clock is established beyond doubt and that there was nobody other than the accused who could have entered the room without their being a forced entry. She contends that the circumstance brought forth by the prosecution lead to an inevitable conclusion that it is the accused only who could have caused the death of Nandini.
12. Having heard counsel for the parties, we have very carefully examined the evidence on record and the material placed before us. We find that the trial court has primarily taken into consideration the disclosure statement of the accused to be the basis of its judgment. The court has found three circumstances which according to it were sufficient to bring home the guilt of the accused. The first circumstance is that Akshay Kumar Pathak had suspected the character of his wife and used to quarrel with her. For this, the court drew upon the testimony of PW-2, Malti Devi. The next circumstance, according to the court, is that Akshay Kumar Pathak has taken different stands at different times in his evidence, namely, that at one stage he has accused Rakesh and Anil of trying to rape Nandini. On another occasion, in cross-examination, he has named Rakesh, Balram and Anil and yet in statement under Section 313 Cr.P.C., he has named only Rakesh as being the killer of his wife. This inconsistency in the stand of the accused is a circumstance that has been used against the accused. The next circumstance is that the accused was present in his house where the deceased was murdered at about 9:15 p.m. on the day of occurrence and that the death could have taken place between 9 and 10 p.m. But the most important circumstance is the recovery of the iron rod at the instance of the accused pursuant to the disclosure statement made to the Investigating Officer by the accused.
13. Analyzing the evidence on record, we have the statement of PW- 2, Malti Devi, who has stated that on the fateful night of 29.04.2002, the accused was brought by the police to her house at the village and that the accused had informed her that the villagers had killed her daughter. But this witness suspected the accused. Thereafter, PW-2 along with police and the accused went to the spot of occurrence. This witness categorically states that the accused made statement before the police at the spot that he had committed murder of Nandini at about 2 a.m. in the night intervening 29/30.4.2002 and that this witness thumb marked the aforesaid statement which was also signed by the accused. This witness also deposed to the fact that there was great love and affection between Nandini and the accused which of late had gone sour. The witness also admits that Rakesh, Balram and Anil had earlier made an attempt to molest the deceased on which a formal complaint had been lodged with the police by the accused. She also testifies to the recovery of iron saria/iron pipe and a towel at the instance of the accused pursuant to the statement made by him at about 2 a.m. in the intervening night of 29/30.04.2002. It is in the evidence of Investigating Officer that on 30.04.2002, after having received the autopsy from PW-17, Dr. R.K. Punia and after cremation, Malti Devi came to the Police Station and he took her to the spot. The accused was present in his house on the first floor of the godown and was thoroughly interrogated. On sustained interrogation, the accused disclosed that he doubted the character of his wife Nandini during his stay about 10/11 months at the godown and that he had strangulated her with the aid of a pipe and wiped of the blood with a towel which he could get recovered. The disclosure statement was recorded Exhibit PW 2/A, signed by the accused and attested by Malti Devi. SI Kaushal and SI Raghubir Singh also signed the same. This witness also states that pursuant to the disclosure, accused got recovered an iron pipe Exhibit P-1 from the corner of his room and also the towel Exhibit P-2 from a khoonti on the wall of the room. It is thereafter that accused was arrested and his personal search was taken vide memo Exhibit PW 11/A. From perusal of the arrest memo Exhibit PW 11/A, it appears that the accused was arrested on 30.04.2002 at around 5:30 p.m. According to PW-2, Malti Devi, the disclosure statement was recorded at 2 o’clock in the night intervening 29/30.04.2002 but according to the Investigating Officer, it was recorded in the evening on 30.04.2002. In the face of depositions of PW-2 Malti Devi and PW-16, Balbir Singh, the Investigating Officer, the statements of PW-11, SI Raghuvir Singh and PW-12, SI Kaushal Ganguli, to the contrary that the disclosure statement was recorded after arrest, does not inspire confidence. Whatever be the time of recording of the disclosure statement, it is apparent that the statement of the accused was recorded prior to his arrest which is shown at 5:30 p.m. on 30.04.2002 in which case it is not a statement which is saved by Section 27 of the Evidence Act. The disclosure statement, therefore, is of no consequence and cannot be relied upon. Even otherwise taking the judgment of the trial court, we find that the learned judge has extensively drawn upon the disclosure statement to the effect of even converting it into a confessional statement and relying upon the same as such. This is impermissible and could not have formed material which is admissible to arrive at a conclusion that the appellant was the murderer. The alleged recovery, therefore, at the instance of the accused cannot be a circumstance used against the accused.
14. Coming to the next circumstance that the appellant has taken contradictory stands is to say the least with great respect, a misreading of the evidence on record. The defense of the appellant throughout has been that it was Rakesh, Balram and Anil who had earlier tried to molest Nandini and against whom Nandini had made complaint. According to the accused they were responsible for the death of Nandini. If in cross-examination, he has named one or the other does not mean that he is taking a contradictory stand. The stand nonetheless remains that it was one of those three or the three together who have committed murder of Nandini. Even otherwise, surely this circumstance cannot be sufficient in itself to bring about guilt of the accused to the charge framed. The accused has proved by documentary evidence that a prior report had been lodged to the effect that Rakesh, Balram and Anil had attempted to rape Nandini. This proven fact cannot be held against the accused nor can the names of the culprits therein be torn out of context and used to implicate the accused. We, therefore, firmly believe that this is not a circumstance which could be used against the accused to his detriment.
15. Further, coming to the circumstance that the accused was present at his house at around 9:15 p.m., where Nandini had been murdered between 9 to 10 p.m., we find that according to PW-3, Ajay Sharma, Ved Parkash left the room at the godown of Pradeep Jain to attend the duty at Pradeep Jain’s residence at Rajpur Road at 7:30 p.m. and according to Ved Parkash, he reached Rajpur Road, residence of Pradeep Jain at about 8:45 p.m. It was at 8:45 p.m. that Akshay Kumar Pathak left the residence of Pradeep Jain at Rajpur Road for the godown at Siraspur at distance of 15 kilometers. Considering that Ved Parkash took an hour and 15 minutes to cover the same distance, it can safely be said that the appellant must have reached the godown at 10 p.m. According to the trial court, Nandini’s murder could have been committed any time between 9 to 10 p.m. The fact that the accused arrived at the godown at 10 p.m. and made the report to the police within half an hour after discussing with PW-3, Ajay Sharma, PW-6 Pradeep Kumar Jain and PW-7, Kuldip Sharma, cannot per se mean that it was the accused and only the accused who could have committed the murder. The possibility of somebody else doing the nasty act cannot be ruled out. His presence at 10 o’clock at the spot of incident is not a circumstance of the nature which can be said to establish the only hypothesis that it is the appellant and only the appellant who committed the murder. The finding that there was no occasion for any other person to enter the godown except the accused, is not a fair deduction from the material on record. Further, merely because PW-2 Malti Devi has stated that the great love and affection between the couple had, over the last two years, gone sour, is hardly a circumstance that can be said to be a motive of the murder. The finding of the court that the accused suspected his wife is primarily drawn from material which is inadmissible, namely, the so-called disclosure statement and therefore, it could not be used to draw such an inference.
16. In view of our findings above, it is not possible for us to sustain the judgment of conviction dated 29.07.2004 and the order on sentence dated 30.07.2004 Consequently, both are set aside. Criminal Appeal No. 909 of 2004 is allowed and disposed of. The appellant is acquitted of all charges framed. The appellant is in custody. He be set at liberty forthwith unless required in any other case.