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Anoop Kumar vs State on 27 July, 2018

$~R-12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 203/2003

ANOOP KUMAR ….. Petitioner
Through: Mr.M.L.Yadav, Advocate.
versus

STATE. ….. Respondents
Through: Mr.Hirein Sharma, APP with SI
G.N.Tiwari, P.S.Lahori Gate.

CORAM: JUSTICE S.MURALIDHAR
JUSTICE VINOD GOEL
JUDGMENT
% 27.07.2018

Dr. S. Muralidhar, J.:

1. This is an appeal directed against the judgment dated 17 th March 2003
passed by the learned Additional Sessions Judge, Delhi in Sessions Case
No.86/2001 arising out of FIR No.300/1992 registered at Police Station
(„PS‟) Lahori Gate convicting the Appellant for the offence under Section
302 of the Indian Penal Code („IPC‟) and the order on sentence dated 20th
March 2003 sentencing him to imprisonment for life along with a fine of
Rs.5,000/-, and in default of payment to undergo rigorous imprisonment (RI)
for 1 year. The Appellant was also convicted for the offence under Section
201 IPC and sentenced to undergo RI for 3 years along with a fine of
Rs.1,000/-, and in default of payment to undergo RI for two months. Both
the sentences were directed to run concurrently.

2. The charge against the Appellant, Anoop Kumar (Accused No.1-A-1) was

Crl. A. 203/2003 Page 1 of 7
that he along with the co-accused, i.e., his mother, Nemwati (A-2) and his
jethani (sister in law), Madhu Devi (A-3) in furtherance of their common
intention subjected his wife Lalita Devi (the deceased) to cruelty and also
made illegal demands of dowry thereby committing the offence punishable
under Section 498A read with Section 34 IPC; secondly on the intervening
night of 18th/ 19th November 1992 at the premises No.1132, Gali Samosan,
Prashkhana all of them in furtherance of their common intention committed
the murder of the deceased thereby committing an offence punishable under
Section 302 read with Section 34 IPC. The third charge under Section 201
IPC for causing evidence to disappear was only against the present
Appellant. He was charged with having thrown the nylon rope which was
used in the commission of offence near Ajmeri Gate, three wheeler scooter
stand.

3. An alternative charge for the offence under Section 304B IPC was framed
only against the Appellant‟s mother, Smt. Nemwati (A-2). However, even
before the trial could commence, A-2 expired. The trial Court could proceed
only against the Appellant and A-3.

4. By the impugned judgment of the trial Court, the co-accused A-2 has been
acquitted of all the offences. It is only the Appellant who has been convicted
under Section 302 and Section 201 IPC and sentenced in the manner noticed
hereinbefore.

5. The case was based on circumstantial evidence. That the deceased died a
homicidal death as a result of strangulation was proved by the post mortem

Crl. A. 203/2003 Page 2 of 7
report (Ex.PW-14/A, 14/B and 14/C) submitted by Dr.Basant Lal (PW-14).
He noticed a ligature mark “10.5 x 1.5 cm situated on middle front of neck
5.5 cm below the chin and 5.6 cm below the right angle of lower jaw.”
There were contusions over the face, right elbow and right forearm. His
opinion was that death was caused due to asphyxia as a result of
strangulation with a ligature. All the injuries were ante mortem and recent in
duration. PW-14 was subjected to extensive cross-examination but nothing
emerged to show anything contrary to the opinion formed by him regarding
the death being homicidal and the cause of death.

6. It emerged in the evidence of Smt. Kanti (PW-1), the mother of the
deceased and Hari Om (PW-2), the father of the deceased that the marriage
of the Appellant and the deceased took place on 26th January 1991.
Although both witnesses talked about the deceased being subjected to
harassment and demands for dowry by the accused, that part of the evidence
has been disbelieved by the trial Court. The co-accused as well as the
present Appellant have been acquitted for the offence under Section 498A of
the IPC.

7. On the aspect of the offence under Section 302 IPC, the trial Court has, in
the impugned judgment, drawn the following conclusions:

(i) On the fateful night, the neighbours noticed that the television was
playing in the house of the accused on a high volume. Although the accused
suggested that the deceased was suffering from loose motions and was in a
weak condition and, therefore, had to be taken to hospital for treatment,

Crl. A. 203/2003 Page 3 of 7
PW-2 heard from the neighbours that there had been a quarrel between the
deceased and the Appellant the previous night during which the Appellant
had given her a beating. It was that beating which resulted in her death.

(ii) the television was being played in full volume to make it appear to the
neighbours that the deceased was suffering from dysentery for the last two
days and was inside whereas she had already been killed as a result of
strangulation.

8. The trial Court proceeded to surmise that the fact that Vinod Kumar (PW-

5) asked the Appellant to bring a three-wheeler to take his wife to the
hospital but the Appellant only availed a cycle rickshaw showed that he
deliberately extinguished the possibility of her survival. According to the
trial Court, when he brought her into the hospital, he told the doctor that she
was suffering from dysentery and diarrhoea but even the doctor who first
examined her at the JPN Hospital at 1.20 am on 19th November 1992 noticed
that she was brought by her husband but was brought dead and simply noted
that she was brought in “a state of unconsciousness and that no further
details are available.” However, the trial Court proceeded to conclude that
the Appellant had given wrong information first to the police and then to the
relatives and had taken the deceased to the hospital
“only after obtaining a medical certificate about her death and
not for treatment because the accused had already known that
she is dead. He might have requested the doctor not to mention
the ligature mark on the neck and that can be the reason that the
doctor did not mention it but unfortunately the efforts made by
the accused were dashed to grounds when the SDM who
happened to be a doctor was deputed to prepare inquest papers

Crl. A. 203/2003 Page 4 of 7
and he noticed the ligature mark and got the case registered
after obtaining the post mortem report which had confirmed it
to be a death due to strangulation and not by dehydration as
claimed by the accused. The accused in this case had tried to be
over clever and he succeeded in procuring a favourable report
from one doctor who declared Lalita brought dead but did not
mention the ligature mark on the neck but that very ligature
mark when noticed by SDM was not rightly ignored by him
which resulted in the discovery of the cause of death when the
body was sent for the post mortem examination and the doctor
confirmed it to be a death due to strangulation and injuries ante
mortem. Thus, the planning of the accused to take the dead
body to the hospital just to get a medical certificate of death and
then to propagate that she had died of diarrhoea and to convey
that every report to the mother and brother of the deceased and
to call them to the spot and also to persuade them to believe
him and to make statement in favour of the accused all efforts
proved futile and he was found responsible for the death of his
wife even by the relatives of the deceased and they changed
their statements expressing suspicion on the cause of death not
due to diarrhoea but by strangulation.

9. The Court finds that the above conclusions of the trial Court are based
primarily on conjectures and surmises. While it is correct that the
prosecution proved beyond reasonable doubt that the deceased had died a
homicidal death, that circumstance by itself is insufficient to bring home the
guilt of the present Appellant. Each of the links in the chain of
circumstances had to be proved beyond doubt.

10. The Court finds that the Appellant has taken a defence that he was not
present in the house when his wife died. Unfortunately for the prosecution,
as many as five witnesses turned hostile on this aspect and supported this
claim. These are Smt. Renuka (PW-4), Vinod Kumar (PW-5), Ashok Kumar

Crl. A. 203/2003 Page 5 of 7
Gupta (PW-7), Smt.Shiv Rani (PW-8) and Smt.Maya Pandit (PW-11). Each
of them has stated that the Appellant was not present in the house and he had
to be summoned after they found the deceased in an unconscious/dead
condition at her house. All of them have uniformly stated that at that time,
they noticed A-2 and A-3 in the house but not A-1.

11. The trial Court has not even bothered to discuss the evidence of these
hostile witnesses but has proceeded on conjectures and surmises to conclude
that it is the Appellant alone who was responsible for strangulating his wife.
The trial Court has, in that process, failed to observe the legal requirement
that the prosecution has to conclusively prove each link in the chain of
circumstances and, in particular, that those proved circumstances must point
unerringly to the guilt of only the accused and no one else. In the present
case, with the presence of the Appellant in the house at the time of the death
of the deceased not having been established and with the possibility of the
other occupants committing the crime not having been ruled out, it was
erroneous on the part of the trial Court to conclude that it is the Appellant
alone who murdered his wife.

12. The Court is, therefore, unable to concur with the trial Court both as
regards the guilt of the Appellant for the offence under Section 302 read
with Section 34 IPC or Section 201 IPC. The Appellant is entitled to the
benefit of doubt and is acquitted of the aforementioned offences.

13. The appeal is accordingly allowed. The impugned judgment and order
on sentence of the trial Court are set aside. The bail bonds and surety bonds
furnished by the Appellant shall stand discharged.

Crl. A. 203/2003 Page 6 of 7

14. The Appellant shall fulfil the requirements of Section 437A Cr P C to
the satisfaction of the trial Court. The trial Court record be sent back
forthwith along with a certified copy of this judgment.

S. MURALIDHAR, J.

VINOD GOEL, J.

JULY 27, 2018
‘anb’

Crl. A. 203/2003 Page 7 of 7

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