SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Dhanesh vs The State on 8 July, 2019

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.A. 492/2017
DHANESH ….. Appellant
Through: Mr. Pramod Kumar Dubey,
with Mr. Kushank Sindhu,
Ms. Trishita Prasar and
Mr. Nirvikar Singh, Advocate

versus
THE STATE ….. Respondent
Through: Ms. Aashaa Tiwari, APP for State
with Inspector Yuvraj Prasad and
SI Amit Kumar, PS Kalyanpuri

WITH
+ CRL.A. 628/2017
VIKRANT ….. Appellant
Through: Mr. Pramod Kumar Dubey,
with Mr. Kushank Sindhu,
Ms. Trishita Prasar and
Mr. Nirvikar Singh, Advocate
versus
THE STATE ….. Respondent
Through: Ms. Aashaa Tiwari, APP for State
with Inspector Yuvraj Prasad and
SI Amit Kumar, PS Kalyanpuri

AND
+ CRL.A. 451/2018
KAILASH CHAND ….. Appellant
Through: Mr. Pankaj Tomar, Advocate

versus

Crl.A.No. 492/2017 Ors. Page 1 of 53
STATE ANR. ….. Respondents
Through: Ms. Aashaa Tiwari, APP for State
with Inspector Yuvraj Prasad and
SI Amit Kumar, PS Kalyanpuri.

% Date of Decision: 08th July, 2019

CORAM:
HON’BLE MR. JUSTICE MANMOHAN
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

JUDGMENT

MANMOHAN, J:

1. While Crl. A. 451/2018 has been filed by the appellant-complainant
Kailash Chand, father of the deceased Neeta @ Vineeta challenging the
judgment dated 18th January, 2017 acquitting all the three accused
including Ajit Singh under Sections 498A/304B/34 IPC; Crl. A. 492/2017
and Crl. A. 628/2017 have been filed by the appellants-convicts Dhanesh,
W/o. Ajit Singh and Vikrant, S/o. Ajit Singh against the same judgment
convicting them under Sections 302/34 IPC as also appellant-convict
Vikrant additionally under Section 316 IPC read with Section 27 of Arms
Act as well as the order on sentence dated 8th February, 2017.

2. The case of the prosecution is that Mr. Amrish Kumar (PW-3) had
called the police control room on 5th February, 2013 and lodged a
complaint regarding a quarrel between a husband and wife at 13/2,
Kalyanpuri, Delhi. Mr. Amrish Kumar (PW-3) stated in his Section 161
of Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.
P.C.”) statement that the appellant-convict Dhanesh had come down the

Crl.A.No. 492/2017 Ors. Page 2 of 53
stairs screaming and crying followed by her son appellant-convict Vikrant
who asked to be taken to the police station as ‗he had done whatever he
wanted to do’ (English translation). Subsequently, Mr. Amrish Kumar
(PW-3) went upstairs with the police and found that appellant-convict
Vikrant‟s wife Neeta @ Vineeta was lying dead and a knife was lying
outside the room. The deceased Neeta @ Vineeta, who was nine months
pregnant, was found to have been stabbed multiple times with a knife and
at the time of the murder, she was pregnant with twins. According to the
police, the appellant-convict Vikrant had informed them that the deceased
was continuously nagging / taunting him for being unemployed. On 8th
May, 2013, the family members of the deceased victim made allegations
of demand for dowry and torture against the appellants-convicts Dhanesh
and Vikrant as well as Ajit Singh. Charges were framed against all the
three accused persons under Sections 498A/304B/120B and 34 IPC. The
appellant-convict Vikrant and Ajit Singh were also charged under
Sections 302/34 IPC and appellant-convict Vikrant was additionally
charged with Section 316 IPC and Section 27 of the Arms Act.

3. The trial Court acquitted all the three accused under Sections
498A/304B/34 IPC, but convicted Vikrant and Dhanesh under Sections
302/34 IPC and additionally Vikrant under Section 316 IPC read with
Section 27 of Arms Act. The relevant portion of the trial court judgment
dated 18th January, 2017 is reproduced hereinbelow:-

―51. From the testimonies of the family members (PW5, 9 15),
it does not stand proved on record that accused persons had
harassed the deceased on account of demand of dowry soon
before her death. As all these witnesses have stated that accused
persons had not demanded any dowry prior to marriage; they

Crl.A.No. 492/2017 Ors. Page 3 of 53
had verified their credentials before marriage and no complaint
was lodged to any authority regarding any demand of dowry by
any of the accused persons till 05.05.2013. PW9, brother of the
deceased has even stated that articles in the dowry were given as
per customs and traditions. It has also come in evidence of these
witnesses that accused persons had already been running the
business of Cable TV even prior to marriage of deceased with
accused Vikrant and they appeared to be well off.

52. It would be relevant to quote Section 113B of Evidence Act,
which reads as under:-

xxxx xxxx xxxx xxxx

54. In the present case, the presumption has been rebutted
by cogent and convincing evidence as discussed above.
Therefore, when the essential ingredients that deceased was
subjected to cruelty or harassment soon before her death for or
in connection with demand of dowry has not been proved,
question of drawing presumption under Section 113-B of the
Evidence Act does not arise. 55. In view of above discussion, I
hold that though it has been proved on record that deceased died
within 7 years of her marriage, but there is no evidence
on record to substantiate that soon before her death she was
subjected to cruelty or harassment by the accused for or
connection with demand of dowry in view of evidence of family
members of the deceased as discussed above. Even there is no
evidence of existence of any conspiracy between the accused
persons for harassing the deceased for dowry or eliminating her
for non-fulfillment of demand of dowry by accused persons.
Therefore, prosecution has not been able to prove its case
against accused persons under Section
304B/498A/120B/34 IPC. Accordingly, all the accused persons
are acquitted for the charges under Section 304-B/498A/120B/34
IPC.

55. In view of above discussion, I hold that though it has
been proved on record that deceased Poonam Sharma died
within 7 years of her marriage, but there is no evidence

Crl.A.No. 492/2017 Ors. Page 4 of 53
on record to substantiate that soon before her death she was
subjected to cruelty or harassment by the accused for or
connection with demand of dowry in view of evidence of family
members of the deceased as discussed above. Even there is no
evidence of existence of any conspiracy between the accused
persons for harassing the deceased for dowry or eliminating her
for non-fulfillment of demand of dowry by accused persons.
Therefore, prosecution has not been able to prove its case
against accused persons under Section 304-B/498A/120B/
34 IPC. Accordingly, all the accused persons are acquitted for
the charges under Section 304-B/498A/120B/34 IPC………

xxxx xxxx xxxx xxxx

65. It has come in the evidence of PW-3 on record
that accused Vikrant and his mother Smt. Dhanesh had returned
from vegetable market to their house at about 9.00 p.m. It is,
therefore, clear that at the time of incident, accused Vikrant and
Dhanesh were present in the house………….

xxxx xxxx xxxx xxxx

72. It has been contented by Ld. Counsel for the accused persons
that sketch of the knife allegedly used by the accused Vikrant is
not signed by accused Vikrant, whereas as per Police signatures
of accused Vikrant were obtained on memos.

73. I have perused the sketch Ex.PW23/B. It is true that this
sketch does not bear signatures of accused Vikrant, nevertheless
its seizure memo Ex.PW23/C bears signatures of accused.
Sketch and seizure memo of other knife also bear
signatures of accused Vikrant and other memos pertaining
to accused Vikrant bear his signatures. Hence, omission
of signature of accused Vikrant on sketch Ex.PW23/B of
the knife hardly makes any difference and is not of much
relevance.

74. Secondly variance in the Crime Scene Report and other
memos regarding timing of recovery of knife and non¬signing
thereof by public witnesses is not of such relevance as the blood

Crl.A.No. 492/2017 Ors. Page 5 of 53
on the knife and on Jeans worn by accused Vikrant was of
deceased. Hence, recovery of the knife can not be said to be
doubtful.

xxxx xxxx xxxx xxxx

79. There is no explanation from the side of accused as to how
blood of the deceased came on his Jeans. In the absence of any
explanation in this regard, coupled with the fact that blood of the
deceased was also found present on the knife Ex. P-1 used in the
murder and report of FSL Ex.PW25/A and Ex.PW25/B,
admission of the contents of the PCR Form and testimony of
PW6; presence of the accused Vikrant and Dhanesh at the spot at
the relevant time and admission of PW3 in his testimony that he
had not seen any stranger entering or coming out from the
house of accused on the day of incident, I hold that it was the
accused Vikrant Singh who committed murder of his wife Vinita
in furtherance to common intention with his mother accused
Dhanesh as they were the only persons present in the house with
Vinita and after committing murder of Vinita, both the accused
persons came out of the house. It has come in evidence of PW3
that no outsider had entered or come out from the house of
accused persons on the day of incident at or around the
time of incident.

80. However, it may be agitated on behalf of the accused
Dhanesh that she has not been charged for offence under Section
302/34 IPC, therefore, she can not be convicted therefor.
However, this contention is not be tenable in view of specific
provision laid down in Section 221 Cr.P.C., which is reproduced
hereinunder:-…………….

81. Hence, when there is clear cut evidence on record that
accused Vikrant committed murder of Vinita in furtherance to
common intention shared with his mother accused
Dhanesh, then there is no embargo in convicting Dhanesh for
offence under Section 302/34 in view of Section 221(2) Cr.P.C.

Crl.A.No. 492/2017 Ors. Page 6 of 53

82. It has also come in evidence that deceased Vinita was in
advanced stage of her pregnancy when she was murdered and
thus it stands proved on record that accused Vikrant Singh and
accused Dhanesh caused death of twins unborn children……….

83. Accused Smt. Dhanesh allegedly absconded during the
course of investigation and failed to appear in
response to a proclamation published under Section 82 of the
Code of Criminal Procedure………..

84. SI Murtaza Khan has been examined as PW24. But he did
not speak a word about execution of process under Section 82
Cr.P.C. against accused Smt. Dhanesh………………. Therefore,
defence counsel could not put question regarding the authenticity
of the report filed by SI Murtaza Khan on the process under
Section 82 Cr.P.C., hence, the same has put a dent on the case of
the prosecution qua accused Smt. Dhanesh om respect of offence
Under Section 174-A IPC. Hence, proceedings conducted against
accused Smt. Dhanesh under Section 82 Cr.P.C. stands vitiated.
Accordingly, accused Smt. Dhanesh is acquitted of the charge
under Section 174A of IPC.

85. There is nothing on record that accused Ajeet Singh was
present at the time of murder nor there is any evidence that he
shared common intention with accused Vikrant Singh
and Smt. Dhanesh. Hence, accused Ajeet Singh is acquitted of
all the charges levelled against him.

86. However, in view of above discussion, both the
accused Vikrant Singh and Smt. Dhanesh are held
guilty under Section 302/34 IPC; accused Vikrant Singh is also
held guilty for offence under Section 316 IPC and under Section
27 Arms Act and they are convicted thereunder.‖

4. The relevant portion of the order on sentence is reproduced
hereinbelow:-

―(1) Convict Vikrant Singh is sentenced to imprisonment for life
and a fine of Rs.10,000/- is also imposed on him for offence
under Section 302/34IPC. In default of payment of fine, convict

Crl.A.No. 492/2017 Ors. Page 7 of 53
shall further undergo SI for 2 months.

(2) Convict Vikrant Singh is sentenced to rigorous imprisonment
for 6 years and a fine of Rs.10,000/- is also imposed on him for
offence under Section 316 IPC. In default of payment of fine,
convict shall further undergo SI for 2 months.

(3)Convict Vikrant Singh is sentenced to rigorous imprisonment
for 3 years and a fine of Rs.5,000/- is also imposed on him for
offence under Section 27 Arms Act. In default of payment of
fine, convict shall further undergo SI for 1 month.

(4) Convict Smt. Dhanesh is sentenced to imprisonment for life
and a fine of Rs.10,000/- is also imposed on him for offence
under Section 302/34 IPC. In default of payment of fine,
convict shall further undergo SI for 2 months.

6. All the sentences awarded to the convict Vikrant
Singh shall run concurrently. Benefit of Section 428 Cr.P.C. is
extended to both the convicts……‖

5. At the outset Mr. Pramod Kumar Dubey, learned counsel for
appellants-convicts Dhanesh and Vikrant submits that the appellant-
convict Dhanesh‟ conviction under Section 302 IPC was contrary to the
principles of criminal jurisprudence as no substantive charge under
Section 302 IPC had ever been framed against her. He further submits
that in the absence of a charge under Section 302 IPC, the trial court could
not have proceeded to convict appellant-Dhanesh under the said Section.
In support of his submission, he relied upon the judgment of the Apex
Court in Sohan Lal Alias Sohan Singh and Others Vs. State of Punjab,
(2003) 11 SCC 534 wherein it has been held as under:-

―7. ……..Neither a charge under Section 302 IPC nor under
Section 109 IPC, was levelled against him in the charge-sheet. In

Crl.A.No. 492/2017 Ors. Page 8 of 53
the absence of a charge being framed against the accused Sohan
Lal under Section 302 or 109 IPC, it would certainly cause
prejudice to him, if he is convicted under either of these offences
at the end of the trial. In our view, it was not permissible for the
trial court to convict the first accused Sohan Lal for the offence
under Section 302 read with Section 109 IPC. His conviction
under Section 302 read with Section 109 IPC is, therefore, illegal
and is liable to be set aside. The High Court erred in upholding
the conviction of Sohan Lal @ Sohan Singh under Section 302
read with Section 109 IPC and dismissing his appeal.‖

6. Learned counsel for the appellants-convicts – Dhanesh and Vikrant
states that the presence of both the convicts at the scene of crime had not
been established. He points out that the ‗star witness’ Mr. Amrish Kumar
(PW-3) to whom the appellant-convict Vikrant had allegedly made an
extra-judicial confession, had turned hostile. He states that Amrish
Kumar (PW-3) had even denied, during his statement under oath, calling
the police from the mobile of the appellant-convict Vikrant. In support of
his contentions, he relies upon the testimony of Amrish Kumar (PW-3)
and Sub-Inspector Sandeep Kumar (PW-23). The relevant portion of the
testimonies of PW-3 and PW-23 relied upon by learned counsel for
appellants-convicts are reproduced hereinbelow:-

A) Testimony of PW-3
―……..On 05.05.13, I was present in my shop and at about 9.00
pm, accused Vikrant alongwith his mother Smt. Dhanesh
returned from vegetable market to their house i.e. adjacent to my
house bearing H.No.13/2, Kalyan Puri. Accused Vikrant is
present in the Court (correctly identified). I know accused Ajeet,
present in the Court (correctly identified), who is father of
accused Vikrant. Accused Vikrant and his mother went inside
their house and after about 2-3 minutes, Smt. Dhanesh followed
by accused Vikrant came out of their house while shouting. I

Crl.A.No. 492/2017 Ors. Page 9 of 53
immediately came out of my shop. Meanwhile, Smt. Dhanesh fell
down and became unconscious. Accused Vikrant also came
there and told that someone has murdered his wife Neeta and
asked me to inform the police. ………… It is not possible for me
every time to see about the people coming and going inside house
no.13/2, Kalyan Puri.‖

B) Testimony of PW-23
―………The adjoining houses to the house of accused persons
were not checked so as to see the accessibility of moving from
one house to another house. Those houses were not checked to
search out any other evidence.‖

7. Learned counsel for the appellants-convicts points out that neither
the FIR nor rukka prepared at the instance of Amrish Kumar (PW-3)
mentions that the convicts had returned home from the vegetable market.
Consequently, he contends that the Trial Court had erred in concluding
that the appellants-convicts were present at the scene of the crime.

8. Learned counsel for the appellants-convicts submits that Section
157 of Cr.P.C had not been complied with inasmuch as Constable Sunder
Pal (PW-19) had admitted that though he had pushed the copy of the FIR
beneath the gate of house of learned Metropolitan Magistrate, yet he had
not handed over the same personally to the learned Metropolitan
Magistrate.

9. Learned counsel for the appellants-convicts points out that the
recovery of jeans allegedly of accused-Vikrant was doubtful inasmuch as
there was contradictory evidence with regard to the place of its recovery.
He states that the alleged seizure memo dated 06th May, 2013 of the jeans
(Ex.PW23/K) indicates that it was seized at ‗Jai Mauka’ or place of

Crl.A.No. 492/2017 Ors. Page 10 of 53
occurrence or scene of crime i.e. house of the appellants-convicts. He
points out that Sub-inspector Sandeep Kumar (PW-23), Sub-Inspector
Murtaza Khan (PW-24) and Investigating Officer Arvind Kumar (PW-29)
have stated in their testimonies that appellant-convict Vikrant had taken
the Police party to the first floor of his house and got recovered the
second knife from the almirah. He further states that the said three
witnesses had stated that appellant-convict Vikrant‟s jeans had blood
spots and the same was removed and kept in a pulanda and seized vide
memo Ex.PW23/K indicating thereby that the jeans was perhaps seized at
the house itself.

10. He however states that SI Sandeep Kumar (PW-23) in a complete
summersault in his cross-examination stated that the jeans of the
appellant-convict Vikrant had been taken into possession at the Police
Station and he had been given clothes to wear arranged from his house
through his father Ajit Singh.

11. Learned counsel for the appellants-convicts points out that the
Medico-legal certificate of Vikrant mentioned the jeans under the head of
articles sealed indicating thereby that the jeans had been retrieved at the
hospital on 06th May, 2013 at 3.15 A.M.

12. According to learned counsel for the appellants-convicts the alleged
jeans could not have been recovered from three different places i.e. house
of the appellants-convicts, the police station and the hospital where the
MLC of appellant-convict Vikrant had been carried out!

13. Learned counsel for the appellants-convicts contends that the
recovery of the alleged murder weapon i.e. knife was doubtful. He points
out that the sketch of the knife did not bear the signature of the appellant-

Crl.A.No. 492/2017 Ors. Page 11 of 53

convict Vikrant. English translation of the relevant portion of the sketch
of the knife prepared by the police is reproduced hereinbelow:-
―Translation of Exhibit PW23/B. A sketch of the knife prepared by
Inspector/SHO Arvind Kumar, PS Kalyanpuri, Delhi; forthcoming
on the record of Case (FIR) No.298/13 dated 05.05.13 for the
commission of an offence punishable under Section 302 IPC, relating
to Police Station Kalyanpuri, Delhi.

SKETCH OF THE KNIFE
(Kindly see original)
xxxx xxxx xxxx xxxx
I. Total length of knife: 33 cm
Length of handle: 13 cm
Length of blade: 20 cm
Width of blade: 4.5 cm
II. The blade is made of a metal like steel. Three bolts are fixed on
handle. The handle is covered with black colour bandage.
III. The words ―DREAMLINE STAINLESS STEEL‖ are written on
the blade of knife.

IV. Blood stains are found on the blade of knife.

Sd/-Vikrant
(In English)
Witnessed by:

1. Sd/-(In English)
SI Sandeep Kumar

2. Sd/- (In English)
SI Murtaza Khan
Sd/- illegible
Inspector Arvind Kumar
PS Kalyanpuri,
Dated 06.05.13.‖

Crl.A.No. 492/2017 Ors. Page 12 of 53

14. He states that it was strange that eight out of the ten photographs
taken by the Mobile Crime Team had been ‗washed out’ due to ‗technical
defects’. He laid emphasis on the fact that the Crime Team had failed to
lift chance prints from the knife.

15. He points out that the appellant-convict Vikrant had in his
statement recorded under Section 313 Cr.P.C. denied the fact that he had
pointed out to the police the place where the knife was lying or that the
knife had been taken into possession at his instance. In the alternative, he
submits that even if the knife had been recovered at the instance of the
appellant-convict Vikrant, no reliance could be placed on the said
recovery as the Police already knew about the existence of the knife at the
spot from where it was seized.

16. Learned counsel for the appellants-convicts lastly submits that it is
trite law that where there are serious infirmities in the prosecution version,
then the benefit of doubt has to go to the accused. In support of his
submission, he relies upon the judgment of the Supreme Court in Ghurey
Lal Vs. State of U.P., (2008) 10 SCC 450.

17. Per contra, Ms. Aashaa Tiwari, learned APP states that the police
had received the first information with regard to the murder in question by
way of a telephone call made from the mobile of appellant-convict
Vikrant. In support of her contention, she relies upon the Police Control
Room (for short “PCR”) form dated 05th May, 2013 as well as DD No.44-
A dated 05th May, 2013 recorded with police station Kalyanpuri, Delhi.
In the aforesaid DD, the informer‟s mobile number had been mentioned as
9911447780. The DD No.44-A dated 05th May, 2013 recorded by police
station Kalyanpuri is reproduced hereinbelow:-

Crl.A.No. 492/2017 Ors. Page 13 of 53

―DD No.44-A, Dated 5-5-13, P.S. Kalyanpuri, Delhi.

D.O.

Information received through PCR call and report
Time: 21.16 hrs.

At this time it is entered that E-50 operator has informed
through W/set that a quarrel was in progress between husband
and wife at 13 block Kalyanpuri and the same information was
received through phone nO.9911447780 from Constable Manoj
2273/PCR. On receipt of the information from PCR, a report to
that effect was entered into the roznamcha and HC/Charandass
No.58/E was apprised in the said regard through telephone and
the same was also conveyed to M-34 and beat staff scribed by
HC/Do. It is further submitted that SI Sandeep Kumar was also
apprised about the said call.

Scribed by : HC/Do
Note: it is true copy of the original

Sd/-illegible
HC Yatvir singh
DO No.314/E
P.S. Kalyanpuri,
Delhi.

Verified
Sd/- illegible
SHO/K Puri

Attested
Sd/- illegible

ACP–Sic–‖

18. Learned APP also draws this Court‟s attention to the rukka which
was subsequently converted into a First Information Report (FIR). She

Crl.A.No. 492/2017 Ors. Page 14 of 53
points out that the rukka was based on the statement of Mr. Amrish
Kumar (PW-3), neighbour of the appellant-convict Vikrant to whom the
appellant-convict Vikrant had made an extra-judicial confession. The said
rukka is reproduced hereinbelow:-

―Statement of Amrish Kumar S/o R.P. Tyagi, R/o 13/3,
Kalyanpuri, Delhi, Age-43 Years, Mob. 9810719525.

I reside at the aforesaid address along with my family
members and run an Electronics Shop at the Ground Floor.
Today on 05.05.13, at about 9.10 PM when I was present at my
shop, Smt. Dhanesh W/o Ajit Singh R/o House No.13/2 Kalyan
Puri, Delhi, came downstairs from her house while weeping
and crying and her elder son namely Vikrant S/o. Ajit Singh
also followed her. Vikrant was wearing a jeans pants and was
not wearing any other clothes on the upper side. While coming
down Vikrant immediately told to take him to the Police Station
as he has done whatever he wanted to do. I tried to inform to
the Police at No.100 through my Mobile No.9810719529 but it
could not be contacted. In the meanwhile, Vikrant kept on
crying to call the Police whereupon, I asked him to call the
Police at No.100 from his mobile. Vikrant contacted the Police
at No.100 and handed over the telephone to me. I, accordingly
informed the Police at No.100 that a quarrel was in progress
between husband and wife at Kalyanpuri and the Police may be
sent there. I kept on standing with Vikrant till the arrival of the
Police. The Police took Vikrant into their possession.
Thereafter, I went upstairs along with the Police and found that
Neeta W/o Vikrant was lying over the bed in an unconscious
state in the room of the second floor of the house. A knife was
also lying outside the room. After making enquiries, you (the
Police) recorded my statement. I have heard the same which is
correct.

Sd/- illegible
05.08.13

Crl.A.No. 492/2017 Ors. Page 15 of 53
Attested
Sd/- Arvind Kumar
(In English)
Insp. Arvind Kumar
PS Kalyanpuri,
Delhi‖
(Police Proceedings)
To
The Duty Officer
PS Kalyanpuri
Delhi.

Sir,
It is submitted that today at about 9.25 PM, I the
Inspector, was present at the Police Station when I received
information through wireless that a murder has been committed
at House No.13/2, Kalyanpuri. On receipt of the information I,
the Inspector, along with Ct. Driver Vinod, No.859/E and
Operator Constable Nemi Chand, No.1879/E reached the spot
through government vehicle No.DL 1CJ 3645. In the meantime,
ACP Kalyanpuri also came present at the spot. SI Sandeep and
SI Murtaza and beat staff were also present over there. A blood
stained knife was lying on the left side near the stairs of the
second floor of House No.13/2 Kalyanpuri, Delhi and in the
room of the right side, a female namely Neeta @ Vineeta W/o
Vikrant Aged 20 years R/o. 13/2 Kalyanpuri, Delhi was lying in
an unconscious state over the bed. The stab injuries were
found present on the abdomen and neck of Neeta @ Vineeta and
bed sheet and a blanket were found blood stained near the bed.
The blood stains were also present over the wall and floor of
the room. The crime team was duly apprised to come over the
spot in the said connection. On making an enquiry, it came to
be known that Neeta @ Vineeta was pregnant. I, the Inspector,
took the photographs at the spot from a personal camera and
sent Neeta @ Vineeta to LBS Hospital through PCR Van under
the surveillance of SI Sandeep. The PCR Van had returned to
the spot after leaving Vikrant S/o Ajit Singh the accused R/o
13/2, Kalyanpuri, Delhi at the Police Station. The spot was

Crl.A.No. 492/2017 Ors. Page 16 of 53
duly preserved. In the meantime, I/C Crime Team, SI Kaushal
Gangulyu No.D-1385, along with Photographer Ct. Vikas
No.1026/E came present over the spot who inspected the scene
of crime. As per the directions of me, the Inspector, the spot
was duly photographed. In the meantime, SI Sandeep came at
the spot and produced to me the MLC No.63627 in respect of
Vineeta wife of Vikrant aged 22 years R/o 13/2, Kalyanpuri,
Delhi whereon the doctor has declared ‗brought dead’. I, the
Inspector, got recorded the statement of sh. Amrish Kumar S/o
R C Tyagi R/o 13/3, Kalyan Puri, Delhi, who was present at the
spot. The contents of the statement, the circumstances
prevailing over there and the perusal of the MLC discloses the
commission of an offence punishable U/s 302 of the IPC. The
aforesaid writing is being sent to the Police Station through Ct.
Nemi hand N.1879/E for the purpose of registration of a case
(FIR). Please intimate the number of a case (FIR) after the
registration of the same. The Senior Officers may be informed
through special Messenger. I, the Inspector, along with the
accompanying staff, am busy at the spot with the investigation.
Date time of occurrence: 05.05.2013 at about 9 PM
Scene of occurrence : 2nd Floor, 13/2 Kalyanpuri, Delhi.
Date Time of dispatch of writing: 05.05.2013 at 11.40 PM

Sd/- Arvind Kumar
(In English)
SHO PS Kalyanpuri,
05.05.2013 (Inspector Arvind Kumar)
No.D/2750
PIS 16890132
DD No.47A at 2350 Hrs. dt. 5.5.13
FIR no.298/13 U/s 302 IPC
PS K Puri
Sd/- (Illegible)
HC Yatvir Singh No.314/E
HC/DO PIS No.28891749
PS Kalyanpuri Delhi
Dated 5.5.13.‖

Crl.A.No. 492/2017 Ors. Page 17 of 53

19. Learned APP contends that the appellant-convict Vikrant had also
disclosed certain material facts to Constable driver Mohd. Sabir (PW-8)
and ASI Subhash Chand (PW-10) who were part of the PCR team and the
first policemen to reach the scene of the crime. The relevant portion of
the said testimonies are reproduced hereinbelow:-
A) Statement of Constable driver Mohd. Sabir (PW-8):-

―….On that day at about 9.15 p.m., a call was received on
wireless set regarding quarrel at H.No.13/2, Kalyan Puri,
Delhi. Thereafter, we reached at the spot where we found
gathering of public persons and one body Vikrant S/o Ajeet
Singh was also present and he was caught hold by the public
persons. Incharge, PCR ASI Subhash Chand made inquiry from
that boy Vikrant, present in court and correctly identified as to
what had happened on which accused Vikrant replied that he
had committed murder of his wife with knife (Objected to).
Hands and jeans pant of Vikrant were stained with blood.
Meanwhile, we took the Vikrant from the public persons and got
him sit in the PCR van and brought him to Police Station
Kalyan Puri and handed over him to the custody of duty officer.

We again returned back to the spot where ACP, SHO Police
Station Kalyan Puri along with other staff were found present
there. Thereafter, we reached II floor of premises No.13/2
Kalyan Puri and we brought down dead body of Neeta @ Vinita
in bed sheet and took the same in PCR and took it to LBS
Hospital….‖

B. Statement of ASI Subhash Chand (PW-10) :-

―….On that day at about 9.15 p.m., I received call from control
room regarding quarrel at H.No.13/2 Kalyan PUri. I along
with my staff reached there within 3 minutes where I found huge
public gathering and produced a boy who told his name Vikrant
and public persons told that that boy Vikrant had murdered his
wife. That boy was wearing baniyan and jeans pant. His hands
and jeans pant were having blood stains. Public persons were
aggressive against that boy, therefore, I got that boy sit in PCR

Crl.A.No. 492/2017 Ors. Page 18 of 53
and I took him to Police Station Kalyan Puri and handed over
the accused to duty officer. I again returned back to the spot
with my staff and ACP and SHO were found a woman lying on
bed in pool of blood and was having injuries on her neck and
stomach. Thereafter, that woman namely Vinita was wrapped
in bedsheet and was removed in PCR to the emergency of LBS
Hospital……

It is correct that I stated in my statement to the police
that accused Vikrant stated before us that he had committed
murder of his wife with knife. It is correct that I had stated in
my statement that at the time of murder, deceased Vinita was
pregnant and had twins….‖

20. Learned APP submits that though the aforesaid admissions are not
admissible as confession, yet the same are relevant facts which are
admissible under Section 8 of the Indian Evidence Act, 1872 (for short
“Evidence Act”). In support of her submission, she relies upon the
judgment of the Apex Court in Aghnoo Nagesia Vs. State of Bihar, AIR
1966 SC 119 (paras 10 to 17) and the judgment of a Division Bench of
this Court in Chandrakant Jha Vs. State, MANU/DE/0183/2016 (paras
44 to 46).

21. Learned APP for State further states that from the evidence on
record there was no doubt that the appellant-convict Vikrant‟s jeans had
been seized and sealed at the police station. She states that it was only
thereafter that the appellant-convict Vikrant was taken to Lal Bahadur
Shastri Hospital.

22. She emphasises that though the MLC of appellant-convict Vikrant
had been produced by the defence during the trial, yet the Doctor who had
prepared the MLC had not been produced as a witness. Consequently, she
states that the prosecution had no occasion to ask the author of the Medico

Crl.A.No. 492/2017 Ors. Page 19 of 53
Legal Certificate of appellant-convict Vikrant as to how the jeans had
been mentioned under the head of articles ‗Sealed’.

23. Learned APP emphasises that the Inspector Arvind Kumar PW-29,
had denied receiving any sealed parcel from the hospital containing the
jeans of the appellant-convict Vikrant or that the jeans seized vide memo
Ex.PW23/K had been planted upon the appellant-convict Vikrant.

24. She lastly submits that delay, if any, in compliance with the
requirement under Section 157 Cr. P.C. does not vitiate the trial or lead to
the conclusion that the investigation was tainted. In support of her
submission, she relies upon the following judgments:-
A) Pala Singh and Another Vs. State of Punjab, AIR 1972 SC 2679
wherein it has been held as under:-

―7. Shri Kohli strongly criticised the fact that the occurrence
report contemplated by Section 157 CrPC was sent to the
Magistrate concerned very late. Indeed, this challenge, like the
argument of interpolation and belated despatch of the inquest
report, was developed for the purpose of showing that the
investigation was not just, fair and forthright and, therefore, the
prosecution case must be looked at with great suspicion. This
argument is also unacceptable. No doubt, the report reached the
Magistrate at about 6 p.m. Section 157 CrPC requires such
report to be sent forthwith by the police officer concerned to a
Magistrate empowered to take cognizance of such offence. This
is really designed to keep the Magistrate informed of the
investigation of such cognizable offence so as to be able to
control the investigation and if necessary to give appropriate
direction under Section 159. But when we find in this case that
the FIR was actually recorded without delay and the
investigation started on the basis of that FIR and there is no
other infirmity brought to our notice, then, however improper or
objectionable the delayed receipt of the report by the Magistrate
concerned it cannot by itself justify the conclusion that the

Crl.A.No. 492/2017 Ors. Page 20 of 53
investigation was tainted and the prosecution insupportable. It is
not the appellant’s case that they have been prejudiced by this
delay.‖
B) Rajender @ Kallu Vs. State, 2017 (1) JCC 12 wherein it has been
held as under:-

―14. We note that so far as communication of the first
information report to the Magistrate is concerned, Section 157 of
the Cr.P.C. draws no exception. The compliance is mandatory.
There can thus be no reservation on account of confidentiality
and privacy concerns in such communication.

15. Given the electronic mode of communication which is now
available with the police as well as the Delhi judiciary, we see no
reason as to why the investigating agency should not resort to
utilization of e- transmission of the report to the concerned
jurisdictional magistrates with sufficient to ensure timely
compliance of Section 157 of Cr.P.C. This would effectively
obviate all objections which are taken by the accused persons as
well as convicts based on delay in compliance thereof. Most
importantly, it would save valuable time and effort on the part of
the investigating agency whose services are already stretched
beyond capacity and limits. This compliance is mandatory at a
stage when the police may be required to undertake critical
investigation say recording of victim and eyewitness accounts,
effecting searches and seizures, tracking accused persons.‖

25. Mr. Pankaj Tomar, learned counsel for appellant-complainant
Kailash Chand submits that the trial court had erred in acquitting all the
three accused including Ajit Singh under Sections 498A/120B and 34
IPC. He submits that the conclusion of the trial court was contrary to the
evidence on record. In support of his contention, he relies upon the
testimonies of appellant-complainant Kailash Chand (PW-5) and
Bhupender (PW-9), brother of the deceased. The relevant portions of the
aforesaid testimonies relied upon by Mr. Pankaj Tomar are reproduced

Crl.A.No. 492/2017 Ors. Page 21 of 53
herewith :-

A) Testimony of Kailash Chand (PW-5)
―In dowry, I had given one I-10 Car, one AC, LCD, wooden
furniture, other household articles etc. I had spent Rs. 40 lacs
in the marriage of my both the daughters Neeta and Kaushal.

Just after 15-20 days of marriage of my daughters,
accused Vikrant, his brother Dinesh, mother Dhanesh and
father Ajeet started demanding dowry in cash. They had
demanded Rs. 2 lacs and then 3 lacs and I met their demands.
Since I was having agricultural land and same was acquired by
Greator Noida Authority, I received compensation in huge
amount. Accused Vikrant and his family members came to
know about this fact and then, accused Vikrant demanded Rs.
10 lacs as dowry.

Accused persons used to subject my daughter Neeta to
mental and physical cruelty in connection with dowry and as
they used to demand dowry in cash. My daughter Neeta used to
tell me whenever I visited her matrimonial house. Even I tell
this fact to my near relatives and friends and thereafter, we held
meeting with accused and his family members on the issue of
harassment for dowry to Neeta but the accused persons did not
restrained themselves from subjecting my daughter Neeta from
cruelty. I did not take action due to social circumstances and
family reputation….‖

B) Testimony of Bhupender (PW-9)
―……….My parents spent Rs. 40 lacs on the marriage of my two
sisters namely Neeta and Kaushal. The above articles were
handed over to accused Ajeet, present in the Court (correctly
identified) (objected to being question out of previous
statements) and thereafter, both my sisters joined their
matrimonial home at Kalyan Puri with their respective
husbands. After about 5-6 months, the accused persons started
raising demand of dowry. Accused persons demanded Rs. 2
lacs for purchasing I2- Car. Accused persons used to demand
dowry. Accused persons again demanded Rs. 3 lacs for starting

Crl.A.No. 492/2017 Ors. Page 22 of 53
business of Cable. Our land was acquired by the government.
Accused persons again demanded Rs. 10 lacs in cash. Accused
persons used to give beating to my sister…….

xxxx xxxx xxxx xxxx
…..The money of rupees two lacs was withdrawn by my father
from Oriental bank……‖

26. However, Mr. Pankaj Tomar candidly admitted that Section 304B
IPC was not attracted to the present case as there was no allegation of
cruelty or harassment by any of the accused soon before the death of the
deceased Neeta @ Vineeta.

27. In response, learned counsel for the three accused submits that the
Trial Court after appreciating the entire evidence had rightly concluded
that the presumption under Section 113B of the Evidence Act stood
rebutted by cogent and convincing evidence. He emphasises that the Trial
Court had held that the accused persons had not demanded any dowry
prior to the marriage and no complaint had been lodged with any authority
regarding any demand for dowry by any of the accused persons till 05th
May, 2013 – the date of the incident.

28. Learned counsel for the appellants-convicts also submits that
Section 8 of the Evidence Act had no application to the present case as no
fact had been discovered by the police in pursuance to any statement
made by the accused. He emphasises that the Supreme Court in Aghnoo
Nagesia Vs. State of Bihar (supra) has held that a confession made to a
police officer under any circumstances is not admissible in evidence
against the accused.

Crl.A.No. 492/2017 Ors. Page 23 of 53

COURT’S REASONING

THE FIRST INFORMATION WITH REGARD TO THE MURDER
INCIDENT WAS PROVIDED BY THE APPELLANT-CONVICT
VIKRANT HIMSELF.

29. Having heard learned counsel for the parties and having perused the
paper book, this Court finds that the first information with regard to the
incident was received by the Delhi Police Control Room on 05 th May,
2013 at 21.10.05 hours by way of a telephone call made from the mobile
bearing No.9911447780. The said information had been recorded in a
PCR form dated 05th May, 2013, which has been proved by the Constable
Manoj Kumari (PW-6). The said PCR form is reproduced hereinbelow:-

―DELHI POLICE CONTROL ROOM
Form-I
DELHI POLICE
(PART I) PART-II FILLED IN BY WIRELESS
STAFF
Date 05-May-2013 21:10:05
Dispatch 05-May-

2013 21:11:42
R.D.D. No.05May131580400 Extn
No.158
Informant‟s (a) Name VIKRANT Van Msg At
(Male) Selected transmitted
Time to Van No.
i) Phone No.9911774680 Time When Van Van Free
Van Report Time
ii) Address 02 Block 13 reached Time
KALYANPURI DELHI spot

Status
Comments
Contact Name 05-May- ROM-77 05-May-
__ 2013 2013

Crl.A.No. 492/2017 Ors. Page 24 of 53
21:13:49 21:13:50
Complaint QUARREL 05-May- 05-May- 05-May-
2013 2013 2013
21:24:55 21:24:55 21:49:12

Accident Info. HUSBAND WIFE
ME QRL.
DCR No. Received 154
Report Received from VAN
05/05/2013 21:24:56 PCO 5MIN
05/5/2013 21:27:20 YAHA EK LADIES
KA MURDER GO GAYA HAI LP KO
BHIJWAYE Ft2 FOR SHO ACP
REMIND R69 DIRECTED 05/05/2013
21:29:17 YAHA KAFI GATHERING
HO GAYI HAI JISNE APNI BIWI KA
MURDER KIYA HAI USE THANE LE
JA RAHE HAI P2 FOR SHO ACP
SAHAB KE NOTICE ME LAYE
05/05/2013 21:39:02 R-77 SHO ACP
SAHAB MAUKE PAR DETAIL KE LIYA
WAIT 05/05/2018 21:49:09 VIKARANT
S/O AJIT AGE 22 YRS R/O 13/2K/PURI
NE APNI BIWI KA NAM VINITA KA
CHAKU SE GALA KAT KER
MURDER KER DIYA HAI JO MAUKA
PAR DEAD PADI HAI VIKARANT LP
KE HAWELE KIYA HAI JINKI SHADI
KO 1 YRS HUA HAI CHAKU BHI
MAUKA PAR PADA HAI 05/05/2013
21:50:!9 JO ACP SAHAB NA BATAYA
HAI KI VINITA 9 MONTH KI
PREGNANT HAI JISE HOSP LE JA
RAHE HAI 05/05/2013 21:56:22 R77
MURDER KI VAJAH KA ABHI NAHI
PATA CHALA HAI CHAKU CHURI
TYPE 8/9 INCH LAMBA THA
05/05/2013 22:17:23 VINITA KO VA
USKE STMOACH KE DONO BACHHO
KO DEAD DECLARE KAR DIYA HAI
LPG HOSP ME 05/05/2013 22:28:08

Crl.A.No. 492/2017 Ors. Page 25 of 53
DR- LBS NE DEAD DECLARE KIYA
HAI FROM B77
Shift B Challan Closed Time 05-May-2013
Recorded By- 22:34:51
WCT/MANOJ
KUMARI/2270NW281 Transmitted by HC Rajiv Tyagi/1293-
02120
C728901522
Police Station KALYANPURI DD No.__ Informed Time 05-May-

2013 21:49:00

Name rank of P.S. Official at spot SI SANDEEP Belt
No.
The Officers Informa: (1)__ (2)
__
(3) _
(4)

(emphasis supplied)

30. Mr.Israr Babu (PW-30), the nodal officer, produced the Vodafone
Customer‟s application form of Mobile No.9911774480 which proves that
the mobile number mentioned in the aforesaid PCR form and DD No.44-
A belongs to appellant-convict Vikrant. The relevant portion of the
statement of the Nodal Officer Mr. Israr Babu (PW-30) is reproduced
hereinbelow:-

“……..Today I have brought the summons record that
Customer Application Form (CAF) of mobile
no.9911774480. As per record, the same is registered in the
name of Vikrant Singh. Photocopy of the CAF alongwith
Election ID Card is Ex.PW30/A (OSR)……..”

(emphasis supplied)

31. In any event, as the PCR form itself mentions the informant‟s name
as Vikrant and his mobile number, this Court is of the view that the first

Crl.A.No. 492/2017 Ors. Page 26 of 53
information with regard to the murder incident was provided by the
appellant-convict Vikrant himself. The aforesaid conclusion is in
conformity, to this extent, with the statement made by Amrish Kumar
(PW-3) under Section 161 Cr.P.C.

FURTHER, THE POST-MORTEM REPORT OF THE DECEASED
SHOWS THAT SHE HAD SUFFERED AS MANY AS SIXTEEN INJURIES
AND THE SAID INJURIES WERE SUFFICIENT TO CAUSE DEATH IN
THE ORDINARY COURSE OF NATURE, WHICH LEADS TO THE
CONCLUSION THAT THERE WAS CLEAR INTENT TO KILL THE
DECEASED AS WELL AS THE UNBORN CHILDREN WHOM THE
DECEASED WAS CARRYING IN HER WOMB.

32. The post-mortem report of the deceased Neeta @ Vineeta shows
that she had suffered as many as sixteen injuries and the said injuries were
sufficient to cause death in the ordinary course of nature. The post-
mortem report of the deceased is reproduced hereinbelow:-

―GOVT. OF NCT OF DELHI
LAL BAHADUR SHASTRI HOSPITAL, KHICHRIPUR, DELHI-91
DEPARTMENT OF FORENSIC MEDICINE

POST MORTEM EXAMINATION REPORT

POST MORTEM NO. 182/13 CONDUCTED BY DR. VINAY KR.

SINGH
DATED: 6/5/13 TIME: 1.15 PM

I. Case Particulars:

FIR/DD No.298/13 Dated 5/5/13 P.S. Kalyan Puri
Name: Neeta @ Vineet, W/o Vikrant, R/o 13/2, Kalyan PUri, Delhi.
Probable Age 20 yrs, Sex: Female Height 161 cm. Weight – Kg.

Crl.A.No. 492/2017 Ors. Page 27 of 53

II. Investigating Officer: SDM P.K. Dabas, Mayur Vihar, P/S Kalyan
Puri.

III. Identified by/Identification Marks:

1. Bhupender.

2. Kailash Chand.

IV. HOSPITAL RECORDS:

Date Time of Receipt of Inquest papers 6/5/13, 12.45 PM
Date Time o Death/Spot Death/Brought Dead 10.05 PM, 5/5/13
Casualty/C.R. No. 70990, 6362/13
Arrival of Body at Mortuary and time 5/5/13, 10.40 PM

V. BRIEF HISTORY AS PER I/O:

Alleged H/o assault at home been brought dead at emergency
L.B.S. Hospital

VI. EXTERNAL GENERAL APPEARANCE:

Built: Average
Condition of eye: Semi open
Natural orifices: NO discharge seen.

Others:

VII. POST-MORTEM CHANGES
Hypostasis: Present
Rigor Mortis: Present
Decomposition Changes: Nil.

VIII. TIME SINCE DEATH: 14-20 HRS.

IX. EXTERNAL EXAMINATION (Injuries etc.)

1. Incised wound, 9×1.2 cm x 2.5 cm deep, obliqualy placed over
front of neck 5 cm below chin margin sharp and regular.

2. Stab wound, 3×1.6 cm x 3.5 cm deep, over left side of neck 10
cm below left ear, margin sharp and regular and lower and
acute, 136 cm above heel.

3. Stab wound, 3.6×1.3 cm x 1.7 cm deep, medium and parallel to

Crl.A.No. 492/2017 Ors. Page 28 of 53
injury no.2, margin sharp and regular lower and acute 137 cm
above the heel on left side of neck, oblique.

4. Stab wound, 3.5 x 1.5 cm cavity deep over left hypocondrium,
margin sharp and regular, lower and acute, 1.5 cm above heel,
oblique.

5. Stab wound, 4×1 cm cavity deep, margin sharp and regular,
lower and acute, 94 cm above heel in left ilice fossa.

6. Stab wound, 4.2 x 1.7 cm cavity deep over left side 2 cm to
umblicus and 97.5 cm above heel, margin sharp and regular,
lower and acute, umblical cord protruding out.

7. Multiple nail marks over right side and front of neck of sixe .3 x
.5 cm, 1.1×3 cm in area of 4×3.2 cm,.

8. Multiple bruise mark, 1×1 cm to 2×1 cm over left side of neck in
area of 9×8 cm.

9. Multiple abrasions around left eye size 3×3 cm.

10.Lacerated wound 1x.4 cm over lower lid of right eye.

11.Lacerated wound 3.5×1 cm over front of chin.

12.Stab wound, 2.5 x 1 cm x 3 cm over right breast 2.5 cm below
right nipple, 116 cm above heel, margin sharp and regular,
lower and acute.

13.Stab wound 4×1.5 cm x 7 cm deep over left breast, 133 cm above
heel margin sharp and regular, oblique, lower and acute.

14.Stab wound 3.8 x 1.8 cm, cavity deep 127 cm above heel,
margins sharp and regular, oblique, lower and acute over left
breast.

15.Stab wound, 4 x .8 cm, cavity deep, 127 cm above heel, margin
sharp and regular, lower and acute, oblique, over left breast.

16.Stab wound 4.5 cm x 1.2 cm cavity deep 126 cm above heel,
margin sharp and regular, oblique, lower and acute over left
breast.

INTERNAL EXAMINATION

Uterus, twins two female foetus. Left side, weight 1600 gms, length
42 cms. One stab would was found over right side of back near 6th
cervical spine, 10×2.5 cm x 1.5 cm, margin sharp and regular.

2. Stab wound over right parietal region of scalp, 3.5 x 1 cm,
cranial cavity deep, margins sharp and regular.

3. Right foot little finger incised, 1.1 cm, margin sharp and regular.

Crl.A.No. 492/2017 Ors. Page 29 of 53

Right side foetus 2200 gms, body length 46 cm. No mark of any
injury.‖
(emphasis supplied)

33. Dr. Vinay Kumar Singh (PW-26), Specialist, Forensic Medicine,
Lal Bahadur Shastri Hospital, Delhi, in his evidence has confirmed that
injuries No.1, 2, 3, 4, 5 and 6 individually and collectively were sufficient
to cause death in ordinary course of nature, which leads to the conclusion
that there was clear intent to kill the deceased as well as the unborn
children whom the deceased was carrying in her womb.

THE WEAPON OF OFFENCE IN THE PRESENT MURDER CASE IS
THE KNIFE THAT WAS SEIZED BY THE POLICE FROM THE SCENE
OF THE CRIME. WHILE IT IS TRUE THAT THE SKETCH OF THE
KNIFE DOES NOT BEAR THE SIGNATURE OF APPELLANT-
CONVICT VIKRANT, YET THE SEIZURE MEMO OF THE KNIFE
BEING EX.PW-23/C BEARS THE SIGNATURE OF APPELLANT-
CONVICT VIKRANT. CONSEQUENTLY, FAILURE TO OBTAIN
SIGNATURE OF APPELLANT-CONVICT VIKRANT ON THE SKETCH
OF THE KNIFE EX.PW-23/B IS OF NO RELEVANCE.

34. Admittedly, a knife was discovered at the scene of the crime.
While it is true that the sketch of the knife does not bear the signature of
appellant-convict Vikrant, yet the seizure memo of the knife being
Ex.PW-23/C bears the signature of appellant-convict Vikrant. The
English translation of the seizure memo being Ex.PW-23/C is reproduced
hereinbelow:-

―Case (FIR) no.298/13 dated 05.05.2013, U/s 302 IPC,
Police Station Kalyan Puri

Crl.A.No. 492/2017 Ors. Page 30 of 53
Ex.P-7
Ex.PW23/C

Pointing out memo of Scene of Crime and Seizure Memo of knife
used in murder of Neeta @ Vineeta
In the presence of the witnesses mentioned hereinafter,
alleged Vikrant S/o Ajit R/o 13/2, Kalyanpuri, Delhi, while
leading and going upstairs towards 13/2, K. Puri, Delhi, pointed
towards a blood stained knife lying on the floor in the left side
at the end of stairs of 2nd Floor and disclosed that this was the
very knife with which he had murdered his wife Neeta @
Vineeta and the alleged Vikrant also pointed towards a bed
lying in the room on the 2nd floor. The mattresses and sheets of
the same were stained with blood and the walls and other
articles were also stained with blood. While pointing towards
the aforesaid articles, he disclosed that this was the very room
where he had committed the murder of his wife Neeta @ Vineeta
by way of stabbing her. The knife so recovered, after pointing
out, having dry blood stains was kept on a white paper and a
sketch thereof was prepared. On measurement, the total length
of the knife and its blade was found to be 33 cms. and 20 cms.
respectively. Whereas the breadth of its blade and handle was
found to be 4.5 cms. and 13 cms. respectively. The knife is made
of steel like metal and its handle is covered with plastic. The
words ‗DREAMLINE STAINLESS STEAL’ were written on the
blade. The knife so recovered has been converted into a parcel
with the help of a white cloth, sealed with the seal „AK‟ and
taken into police possession.

The memo regarding seizure of blood stained knife has been
prepared.‖
Sd/-Vikrant
(In English)

Witnesses:

Sd/-Sandeep
(In English)

Crl.A.No. 492/2017 Ors. Page 31 of 53
SI Sandeep Kumar

Sd/- Murtaza
(In English)
SI Murtaza Khan

Sd/- Arvind Kumar
(In English)
Insp. Arvind Kumar
SHO/Kalyanpuri,
Date 06.05.13‖
(emphasis supplied)

35. Consequently, failure to obtain signature of appellant-convict
Vikrant on the sketch of the knife Ex.PW-23/B is of no relevance.

36. Dr. Vinay Kumar Singh in his evidence has stated that in his
opinion all injuries except injuries No. 7, 8, 9, 10 and 11 mentioned in the
post-mortem report were caused by the seized knife. Consequently, the
weapon of offence in the present murder case is the aforesaid knife that
was seized by the police from the scene of the crime.

THIS COURT IS OF THE VIEW THAT THERE IS NO DOUBT WITH
REGARD TO THE RECOVERY OF BLOOD STAINED JEANS OF THE
APPELLANT-CONVICT VIKRANT FROM THE POLICE STATION AND
THE BLOOD ON THE JEANS WAS OF THE DECEASED NEETA @
VINEETA.

37. From the evidence on record, it is also apparent that the witnesses
who had met the appellant-convict immediately after the incident had
found him wearing jeans stained with blood.

Crl.A.No. 492/2017 Ors. Page 32 of 53

38. While Amrish Kumar (PW-3) has stated that “It is correct that
when accused Vikrant came out of his house, he was wearing jeans only”,
ASI Subhash Chand (PW-10), part of the PCR team who was amongst the
first to reach the scene of crime, has deposed that accused-Vikrant was
wearing a jeans and a vest and “His hands and jeans pant were having
blood stains‖. Even the Constable driver of the PCR Van (PW-8) has
deposed, “Hands and jeans pant of Vikrant were stained with blood‖.

39. The jeans in question was seized vide seizure memo Ex.PW23/K.
The English translation of the said seizure memo bearing the signature of
appellant-convict Vikrant is reproduced hereinbelow:-

―Case (FIR) No.298/13 dated 05.05.2013, U/s 302 IPC, Police
Station Kalyan Puri, District East.

Ex.P-5
Ex.PW23/K
Seizure Memo Regarding Blood Stained Jeans Pants

In the presence of the witnesses mentioned hereinafter, a
blood stained, blue colored jeans pants worn by accused Vikrant
S/o Ajit Singh, R/o 13/2, Kalyanpuri, Delhi, aged 21 years was
(lifted) from the place of occurrence (falling under the
jurisdiction of) P.S. Kalyanpuri, Delhi. Accused Vikrant
disclosed that the blood lying on the said pants was of his wife
Neeta @ Vineeta which had stuck on his jeans pants while
murdering his wife Neeta @Vineeta. The words ‗GRIP JNS’ are
written on the back strip of the jeans and the words, ‗DNM
CULTURE’ are written on the button of the jeans. The jeans
pants was placed on a white coloured cloth and the same was
converted into a parcel which was sealed with the seal of AK and
was taken into police possession as a piece of evidence by means
of this memo.

The seizure memo regarding blood stained jeans pants got
prepared.

Crl.A.No. 492/2017 Ors. Page 33 of 53

Sd/- Vikrant
(In English)
Vikrant
Witnesses:

Sd/- Sandeep
(In English)
SI Sandeep Kumar

Sd/- Murtaza
(In English)
SI Murtaza Khan
Sd/- Arvind Kumar
(In English)
Insp. Arvind Kumar
SHO/Kalyanpuri,
Date 06.05.13‖
(emphasis supplied)

40. Further, the testimonies of Sub-Inspector Sandeep Kumar PW23,
Sub-Inspector Murtaza Khan PW24, Inspector Arvind Kumar PW29 and
Mr. Indresh Kumar Mishra, Senior Scientific Officer (Bio) FSL, Rohini,
PW25 confirm beyond doubt that the blood stained jeans of appellant-
convict Vikrant was seized at the concerned police station. The relevant
portions of the testimonies of the above officials are reproduced
hereinbelow:-

A. SI Sandeep Kumar, PW23
―It was noticed that jeans pant worn by accused was having
stained. The same was got removed from the person of
accused and was taken into possession by adopting same
sealing process. Seizure memo is Ex. PW23/A which bears my
signature at point A. Thereafter accused was taken to LBS
hospital…..jeans of accused was taken into possession in the
police station….‖
(emphasis supplied)

Crl.A.No. 492/2017 Ors. Page 34 of 53
B. SI Murtaza Khan, PW24
―The jeans which the accused was wearing at that time was
having blood stains and thereafter it was got removed from
the body of accused and sealed in cloth parcel with the seal of
AK and parcel was taken into possession vide memo
Ex.PW23/K which bears my signature at point B…..I had
noticed that his jeans was having blood spots. While
removing the accused Vikrant from police station to the spot, I
did not seize his jeans being evidence in this case. Vol.-it was
not required as he was in police custody and there was no
apprehension of his absconding and after his arrest, the jeans
was seized by the IO. It is incorrect to suggest that accused
Vikrant has nothing to do with jeans Ex.P-5.‖
(emphasis supplied)

C. Insp. Arvind Kumar, PW29
―The jeans of accused was having blood spots. The jeans
pant of accused Vikrant was got removed from his body and
was kept in a pulanda duly sealed with the seal of AK and
seized vide memo no.Ex.PW23/K. I took the accused to LBS
hospital…..It is correct that as per MLC Ex.PW29/DA, one
jean pant having blood stains is shown sealed at point A. I did
not receive any sealed parcel from the hospital containing
jean pant of accused Vikrant. It is incorrect to suggest that
said sealed parcel was received by me or that it was withheld
by me from the Court or that the jean pant seized vide memo
Ex.OW23/K was plant upon accused Vikrant…….The word
“Jaye Mauka” means the “place of occurrence”. It is correct
that PS Kalyan Puri was not the place of occurrence. It is
incorrect to suggest that jeans Ex-5 was planted upon the
accused in this case or that seizure memo of jeans Ex.PW23/K
was fabricated by me subsequently.‖
(emphasis supplied)

Crl.A.No. 492/2017 Ors. Page 35 of 53
D. Shri Indresh Kumar Mishra, Sr. Scientific Officer, PW25
―Parcel No.8 was sealed with the seal of AK and was marked
as Ex.8. On opening the same one jean pant having brown
stains described as jeans of accused Vikrant Singh was
found.‖
(emphasis supplied)

41. The Forensic Science Laboratory where the jeans of the appellant-
convict Vikrant had been forwarded for examination has confirmed that
the DNA profile of blood on the jeans was similar with the DNA profile
generated from the blood of the deceased Neeta @ Vineeta. The relevant
portion of the said FSL report is reproduced hereinbelow:-

―FORM No.FSL/DELHI/FM/03/23/24.12.2007

Forensic Science Laboratory
Govt. of NCT of Delhi
Sector 14, Rohini, Delhi-110085.

Tel:011-27555811, Fax: 011-27555890

Accredited by the National Accreditation Board for Resting and
Calibration Laboratories (NABL)

REPORT No.FSL-2013/B-4159 BIO NO.533/14 Dated 23.06.15

1. Please quote the Report (Opinion) No. Date in future
correspondence Summons.

2. This report is Perse admissible u/s 293 Cr.P.C.

To,
The SHO,
P.S. Kalyan Puri,
Delhi.

Crl.A.No. 492/2017 Ors. Page 36 of 53

Your letter No.961/SHO/Kalyan Puri Dated: 21.05.13
regarding 09(Nine) parcel in connection with the case FIR No.298/13
Dated:05.05.13 u/s: 302 IPC P.S., Kalyan Puri duly received in this
office on 21.05.13.

xxxx xxxx xxxx xxxx

DESCRIPTION OF ARTICLES CONTAINED IN PARCEL
xxxx xxxx xxxx xxxx

Exhibit „1‟: One knife having light brown stains.

xxxx xxxx xxxx xxxx
Exhibit „2a‟: One blanket having brown stains.

xxxx xxxx xxxx xxxx
Exhibit „6‟: Brown gauze cloth piece described as blood in gauze of
deceased.

xxxx xxxx xxxx xxxx
Exhibit „8‟: One jeans pants having brown stains described as jeans
of accused Vikrant Singh.

xxxx xxxx xxxx xxxx

CONCLUSION

DNA profile (STR analysis) performed on the source of exhibits „1‟,
„2a‟, „6‟ „8‟ were sufficient to conclude that the DNA profile
generated from the source of exhibit „6‟ (i.e. blood in gauze of
deceased) is similar with the DNA profile generated from the source
of exhibit „1‟ (knife) „2a‟ i.e. blanket) „9‟ (i.e. jeans of accused).”

(emphasis supplied)

42. Consequently, this Court is of the view that there is no doubt with
regard to the recovery of blood stained jeans of the appellant-convict
Vikrant from the police station and the blood on the jeans was of the
deceased Neeta @ Vineeta.

Crl.A.No. 492/2017 Ors. Page 37 of 53

THE APPELLANT-CONVICT VIKRANT HAD ALSO ADMITTEDLY
SUFFERED INJURIES ON THE DATE OF THE INCIDENT I.E. 05TH
MAY, 2013. THE AFORESAID INJURIES HAVE NOT BEEN
EXPLAINED BY THE APPELLANT-CONVICT VIKRANT.

43. The appellant-convict Vikrant had also admittedly suffered injuries
on the date of the incident i.e. 05th May, 2013. The relevant portion of the
MLC of appellant-convict Vikrant is reproduced hereinbelow:-

GOVT. OF N.C.T. OF DELHI
LAL BAHADUR SHASTRI HOSPITAL, KHICHTRIPUR, DELHI-91
MLC No.6378/13
CR NO.71006/13

Name Vikrant Singh Father’s Name/Husband Name Ajeet Singh Age
21 yrs. Sex M Religion – Occupation – Residential Address 13/2,
Kalyanpuri, Delhi Brought By SI Sandeep Date of examination 6/5/13

Particulars of Injuries or Symptoms, in case of
xxx xxx xxx poisoning. Informant self

xxx xxx xxx

xxx xxx xxx

xxx xxx xxx xxx xxx xxx

xxx xxx xxx

L/E-

xxx xxx xxx (1) Abrasion on right Forearm Posterior
Aspect
(2) Abrasion on (Rt.) hand index finger.

                            xxx      xxx   xxx

Crl.A.No. 492/2017 Ors. Page 38 of 53
xxx xxx xxx
xxx xxx xxx

xxx xxx xxx

Name of Injuries Simple Fresh
xxx xxx xxx

Date ............... of ..........20.........
Investigating Medical Officer

(emphasis supplied)

44. The aforesaid injuries have not been explained by the appellant-
convict Vikrant.

THIS COURT CONFIRMS THE FACTUAL FINDING OF THE TRIAL
COURT THAT, ―IT IS, THEREFORE, CLEAR THAT AT THE TIME OF
INCIDENT, ACCUSED VIKRANT AND DHANESH WERE PRESENT IN
THE HOUSE. SINCE THE DECEASED NEETA @ VINEETA HAD
BEEN FOUND MURDERED UNDER UNNATURAL AND SUSPICIOUS
CIRCUMSTANCES, THE APPELLANT-CONVICT VIKRANT WHO WAS
PRESENT AT THE SCENE OF CRIME HAD TO OFFER AN
EXPLANATION AS TO WHAT TRANSPIRED. CONSEQUENTLY, THIS
COURT IS OF THE VIEW THAT SECTION 106 OF THE INDIAN
EVIDENCE ACT, 1872 IS ATTRACTED TO THE PRESENT CASE AND
THE APPELLANT-CONVICT VIKRANT HAS FAILED TO DISCHARGE
THE BURDEN OF PROVING THE FACT ESPECIALLY WITHIN HIS
KNOWLEDGE.

45. Despite turning hostile, Amrish Kumar (PW-3) has admitted that he
had not seen any stranger entering or coming out from the house of the
accused on the date of the incident. Though in cross-examination, he
stated that it is not possible for him every time to see people coming or

Crl.A.No. 492/2017 Ors. Page 39 of 53
going outside the house of the accused, yet this Court is of the opinion
that the said witness is categorical to the extent that on the date of the
incident, he had not seen any stranger entering or exiting the house of the
accused. The relevant portion of the testimony of Amrish Kumar (PW-3)
is "It is correct that I had not seen any stranger entering or coming out
from the house of accused on the day of incident‖. Consequently, this
Court confirms the factual finding of the trial Court that, ―It is, therefore,
clear that at the time of incident, accused Vikrant and Dhanesh were
present in the house.‖

46. In the opinion of this Court, since the deceased Neeta @ Vineeta
had been found murdered under unnatural and suspicious circumstances,
the appellant-convict Vikrant who was present at the scene of crime had
to offer an explanation as to what transpired. The said fact being in the
special knowledge of the appellant-convict Vikrant was required under
Section 106 of the Evidence Act to be explained by him. The appellant-
convict Vikrant in his statement under Section 313 Cr.P.C. has just denied
the allegations. Consequently, this Court is of the view that Section 106
of the Evidence Act is attracted to the present case. Section 106 of the
Evidence Act, reads as under:-

―106. Burden of proving fact especially within knowledge.-
when any fact is especially within the knowledge of any person,
the burden of proving that fact is upon him.‖

47. It is settled law that Section 106 of the Evidence Act is not intended
to relieve the prosecution of its burden to prove the guilt of the accused
beyond reasonable doubt. But the Section applies to cases where the
prosecution has succeeded in proving facts from which a reasonable

Crl.A.No. 492/2017 Ors. Page 40 of 53
inference can be drawn regarding the existence of certain other facts,
unless the accused by virtue of his special knowledge regarding such
facts, failed to offer any explanation which might drive the Court to draw
a different inference. Section 106 of the Evidence Act is designed to meet
certain exceptional cases, in which, it would be impossible for the
prosecution to establish certain facts which are particularly within the
knowledge of the accused. Section 106 of the Evidence Act has been
interpreted and analysed by the Apex Court as well as by the Division
Bench of this Court in a catena of cases. Some of the relevant judgments
are reproduced hereinbelow:-

A) In State of W.B. vs. Mir Mohammad Omar Ors., (2000) 8 SCC
382, the Supreme Court has observed as under:-

―31. The pristine rule that the burden of proof is on the
prosecution to prove the guilt of the accused should not be
taken as a fossilised doctrine as though it admits no process
of intelligent reasoning. The doctrine of presumption is not
alien to the above rule, nor would it impair the temper of
the rule. On the other hand, if the traditional rule relating
to burden of proof of the prosecution is allowed to be
wrapped in pedantic coverage, the offenders in serious
offences would be the major beneficiaries and the society
would be the casualty.

32. In this case, when the prosecution succeeded in
establishing the afore-narrated circumstances, the court has
to presume the existence of certain facts. Presumption is a
course recognised by the law for the court to rely on in
conditions such as this.

33. Presumption of fact is an inference as to the existence of
one fact from the existence of some other facts, unless the
truth of such inference is disproved. Presumption of fact is
a rule in law of evidence that a fact otherwise doubtful may

Crl.A.No. 492/2017 Ors. Page 41 of 53
be inferred from certain other proved facts. When inferring
the existence of a fact from other set of proved facts, the
court exercises a process of reasoning and reaches a logical
conclusion as the most probable position. The above
principle has gained legislative recognition in India when
Section 114 is incorporated in the Evidence Act. It
empowers the court to presume the existence of any fact
which it thinks likely to have happened. In that process the
court shall have regard to the common course of natural
events, human conduct etc. in relation to the facts of the
case.

34. When it is proved to the satisfaction of the Court that
Mahesh was abducted by the accused and they took him out
of that area, the accused alone knew what happened to him
until he was with them. If he was found murdered within a
short time after the abduction the permitted reasoning
process would enable the Court to draw the presumption that
the accused have murdered him. Such inference can be
disrupted if the accused would tell the Court what else
happened to Mahesh at least until he was in their custody.

xxx xxx xxx

37. The section is not intended to relieve the prosecution of
its burden to prove the guilt of the accused beyond
reasonable doubt. But the section would apply to cases
where the prosecution has succeeded in proving facts from
which a reasonable inference can be drawn regarding the
existence of certain other facts, unless the accused by virtue
of his special knowledge regarding such facts, failed to offer
any explanation which might drive the court to draw a
different inference."

(emphasis supplied)

B) In Ram Gulam Chaudhary Ors. vs. State of Bihar, (2001) 8
SCC 311, the Supreme Court has held as under:-

―24. Even otherwise, in our view, this is a case where Section
106 of the Evidence Act would apply. Krishnanand

Crl.A.No. 492/2017 Ors. Page 42 of 53
Chaudhary was brutally assaulted and then a chhura-blow
was given on the chest. Thus chhura-blow was given after
Bijoy Chaudhary had said "he is still alive and should be
killed". The appellants then carried away the body. What
happened thereafter to Krishnanand Chaudhary is especially
within the knowledge of the appellants. The appellants have
given no explanation as to what they did after they took away
the body. Krishnanand Chaudhary has not been since seen
alive. In the absence of an explanation, and considering the
fact that the appellants were suspecting the boy to have
kidnapped and killed the child of the family of the appellants,
it was for the appellants to have explained what they did with
him after they took him away. When the abductors withheld
that information from the court, there is every justification
for drawing the inference that they had murdered the boy.
Even though Section 106 of the Evidence Act may not be
intended to relieve the prosecution of its burden to prove the
guilt of the accused beyond reasonable doubt, but the section
would apply to cases like the present, where the prosecution
has succeeded in proving facts from which a reasonable
inference can be drawn regarding death. The appellants by
virtue of their special knowledge must offer an explanation
which might lead the Court to draw a different inference.
We, therefore, see no substance in this submission of Mr
Mishra."

(emphasis supplied)

C) In Trimukh Maroti Kiran Vs. State of Maharashtra, (2006) 10
SCC 681 the Supreme Court has held as under:-

―14. If an offence takes place inside the privacy of a house
and in such circumstances where the assailants have all the
opportunity to plan and commit the offence at the time and in
circumstances of their choice, it will be extremely difficult
for the prosecution to lead evidence to establish the guilt of
the accused if the strict principle of circumstantial evidence,
as noticed above, is insisted upon by the courts. A judge does
not preside over a criminal trial merely to see that no

Crl.A.No. 492/2017 Ors. Page 43 of 53
innocent man is punished. A judge also presides to see that a
guilty man does not escape. Both are public duties.
(See Stirland v. Director of Public Prosecutions [1944 AC
315: (1944) 2 All ER 13 (HL)] -- quoted with approval by
Arijit Pasayat, J. in State of Punjab v. Karnail Singh [(2003)
11 SCC 271 : 2004 SCC (Cri) 135]. The law does not enjoin a
duty on the prosecution to lead evidence of such character
which is almost impossible to be led or at any rate extremely
difficult to be led. The duty on the prosecution is to lead such
evidence which it is capable of leading, having regard to the
facts and circumstances of the case. Here it is necessary to
keep in mind Section 106 of the Evidence Act which says that
when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him.
Illustration (b) appended to this section throws some light on
the content and scope of this provision and it reads:
―(b) A is charged with travelling on a railway without ticket.
The burden of proving that he had a ticket is on him.‖

15. Where an offence like murder is committed in secrecy
inside a house, the initial burden to establish the case would
undoubtedly be upon the prosecution, but the nature and
amount of evidence to be led by it to establish the charge
cannot be of the same degree as is required in other cases of
circumstantial evidence. The burden would be of a
comparatively lighter character. In view of Section 106 of the
Evidence Act there will be a corresponding burden on the
inmates of the house to give a cogent explanation as to how
the crime was committed. The inmates of the house cannot
get away by simply keeping quiet and offering no explanation
on the supposed premise that the burden to establish its case
lies entirely upon the prosecution and there is no duty at all
on an accused to offer any explanation.

xxxx xxxx xxxx xxxx

22. Where an accused is alleged to have committed the
murder of his wife and the prosecution succeeds in leading
evidence to show that shortly before the commission of crime

Crl.A.No. 492/2017 Ors. Page 44 of 53
they were seen together or the offence takes place in the
dwelling home where the husband also normally resided, it
has been consistently held that if the accused does not offer
any explanation how the wife received injuries or offers an
explanation which is found to be false, it is a strong
circumstance which indicates that he is responsible for
commission of the crime......."

(emphasis supplied)

48. A Division Bench of this Court in Tulsi Ram vs. State, 2017 SCC
OnLine Del 7343 has held as under:-

―44. It has been proved by the prosecution that the deceased
was found dead in the dwelling house where she was residing
with the appellant and was also last seen together with him.
It becomes incumbent on him to offer a plausible explanation
for the death of his wife."

(emphasis supplied)

49. No evidence of forcible entry or theft or third party presence has
been led by the appellant-convict. Consequently, this Court is of the view
that the appellant-convict Vikrant has failed to discharge the burden of
proving the fact especially within his knowledge.

IT IS SETTLED LAW THAT DELAY IN SENDING THE REPORT
UNDER SECTION 157 CR.P.C. CANNOT LEAD TO A CONCLUSION
THAT THE TRIAL IS VITIATED OR THE ACCUSED IS ENTITLED TO
ACQUITTAL

50. Further, from the evidence on record it is apparent that copy of the
FIR had been delivered at the residence of learned Metropolitan
Magistrate and senior police officer in the early hours of 06th May, 2013.
In any event, it is settled law that delay in sending the report under
Section 157 Cr.P.C. cannot lead to a conclusion that the trial is vitiated or

Crl.A.No. 492/2017 Ors. Page 45 of 53
the accused is entitled to acquittal on this ground [See: Jafel Biswas
Ors. Vs. State of West Bengal, 2018 (11) SCALE 341].

51. The compliance with Section 157 Cr.P.C. is relevant where the date
and time of lodging of the FIR is questioned-which is not the case in the
present matter. Consequently, the reliance of learned counsel for the
appellant-convict upon Section 157 Cr.P.C. is misplaced.

52. This Court is further of the opinion that Section 8 of the Evidence
Act is not attracted to the present case as any statement made to a police
officer under any circumstance is not admissible in evidence against the
accused. It covers confession/statements made when he was free and not
in police custody, as also a confession made before any investigation has
commenced.

AS THE APPELLANT-CONVICT VIKRANT WHO WAS PRESENT AT
THE SCENE OF THE CRIME HAS NOT OFFERED ANY
EXPLANATION AND THE BLOOD STAINS ON HIS JEANS HAVE
MATCHED THE DNA PROFILE GENERATED FROM THE BLOOD OF
THE DECEASED NEETA @ VINEETA AND HE HAS NOT EXPLAINED
THE ABRASIONS THAT HE HAD SUFFERED ON THE DATE OF THE
INCIDENT, THIS COURT IS OF THE OPINION THAT THE
APPELLANT-CONVICT VIKRANT IS GUILTY OF MURDER OF NOT
ONLY THE DECEASED NEETA @ VINEETA BUT ALSO OF THE
UNBORN TWINS THAT SHE WAS CARRYING IN HER WOMB.

53. Consequently, as the appellant-convict Vikrant who was present at
the scene of the crime (along with the deceased) has not offered any
explanation and the blood stains on his jeans have matched the DNA
profile generated from the blood of the deceased Neeta @ Vineeta and he
has not explained the abrasions that he had suffered on the date of the
incident, this Court is of the opinion that the appellant-convict Vikrant is

Crl.A.No. 492/2017 Ors. Page 46 of 53
guilty of murder of not only the deceased Neeta @ Vineeta but also of the
unborn twins that she was carrying in her womb.

HOWEVER, AS NO CHARGE WAS FRAMED AGAINST THE
APPELLANT-CONVICT DHANESH FOR THE SUBSTANTIVE
OFFENCE UNDER SECTION 302 IPC, THE TRIAL COURT COULD
NOT HAVE PROCEEDED TO CONVICT HER FOR THE SAID
OFFENCE. ACCORDINGLY, APPELLANT-CONVICT DHANESH IS
ACQUITTED OF THE OFFENCE UNDER SECTION 302 IPC.

54. However, this Court is of the view that as no charge was framed
against the appellant-convict Dhanesh for the substantive offence under
Section 302 IPC, the Trial Court could not have proceeded to convict her
for the said offence.

55. Section 222 Cr.P.C. gives discretion to the Court to convict the
accused ―of the minor offence, though he was not charged with it‖. The
test of minor offence is not merely that the prescribed punishment is less
than the major offence. Only if the two offences are cognate offences,
wherein the main ingredients are common, the one punishable among
them with a lesser sentence can be regarded as minor offence vis-à-vis the
other offence.

56. The Supreme Court has held that the composition of the offence
under Section 304-B IPC is vastly different from the formation of the
offence of murder under Section 302 IPC. In any event, Section 302 IPC
cannot be regarded as a minor offence in comparison to Section 304-B
IPC. The relevant portion of the judgment of the Supreme Court in
Shamnsaheb M. Multtani Vs. State of Karnataka, (2001) 2 SCC 577 is
reproduced hereinbelow:-

Crl.A.No. 492/2017 Ors. Page 47 of 53

―14. Sections 221 and 222 of the Code are the two provisions dealing
with the power of a criminal court to convict the accused of an
offence which is not included in the charge. The primary condition
for application of section 221 of the Code is that the court should
have felt doubt, at the time of framing the charge, as to which of
the several acts (which may be proved) will constitute the offence
on account of the nature of the acts or series of acts alleged
against the accused. In such a case the section permits to convict
the accused of the offence of which he is shown to have committed
though he was not charged with it. But in the nature of the acts
alleged by the prosecution in this case there was absolutely no
scope for any doubt regarding the offence under Section 302 IPC,
at least at the time of framing the charge.

15. Section 222(1) of the Code deals with a case when a
person is charged with an offence consisting of several
particulars. The Section permits the court to convict the accused
―of the minor offence, though he was not charged with it‖.

―222.(2) When a person is charged with an offence and facts
are proved which reduce it to a minor offence, he may be
convicted of the minor offence although he is not charged
with it.‖

16. What is meant by a minor offence for the purpose
of Section 222 of the Code? Although the said expression is not
defined in the Code it can be discerned from the context that the
test of minor offence is not merely that the prescribed
punishment is less than the major offence. The two illustrations
provided in the section would bring the above point home well.
Only if the two offences are cognate offences, wherein the main
ingredients are common, the one punishable among them with a
lesser sentence can be regarded as minor offence vis-à-vis the
other offence.

17. The composition of the offence under Section 304-
B IPC is vastly different from the formation of the offence of
murder under Section 302 IPC and hence the former cannot be
regarded as minor offence vis-à-vis the latter.....‖
(emphasis supplied)

Crl.A.No. 492/2017 Ors. Page 48 of 53

57. Accordingly, appellant-convict Dhanesh is acquitted of the offence
under Section 302 IPC.

THERE IS A RING OF TRUTH TO THE TESTIMONIES OF KAILASH
CHAND (PW-5), SMT. SHEELA (PW-15) AND BHUPENDER (PW-9)
AND THEY HAVE BEEN PARTIALLY CORROBORATED BY MR. AMIT
MALHOTRA, (PW-11), SALES MANAGER WITH NIMBUS MOTORS
PVT. LTD. (HYUNDAI) INASMUCH AS HE DEPOSED THAT ONE I-10
ERA MODEL HYUNDAI CAR OF WHITE COLOUR HAD BEEN
BOOKED IN THE NAME OF AJIT SINGH, FATHER OF THE
ACCUSED-CONVICT VIKRANT BY BHUPENDER (PW-9), BROTHER
OF THE DECEASED FOR WHICH THE INITIAL AMOUNT OF
RS.90,000/- HAD BEEN PAID BY BHUPENDER (PW-9).
CONSEQUENTLY, ALL THREE ACCUSED PERSONS NAMELY,
DHANESH, VIKRANT AND AJIT SINGH ARE HELD GUILTY OF
OFFENCE UNDER SECTION 498A/34 IPC.

58. On a plain reading of Section 498A IPC, it is apparent that cruelty
can be of different types. Explanation (a) defines „cruelty‟ as a wilful
conduct of such a nature which is likely to drive a victim/woman to
commit suicide or to cause grave injury or danger to her health, life or
limb (whether mental or physical). The other explanation of „cruelty‟ in
Clause (b) is attracted when a women is harassed with a view to coerce
her or any of her relatives to meet any unlawful demand for any property
or valuable security or is on account of her failure to meet such demand.

59. In the present case, Kailash Chand (PW-5), father of the deceased,
Smt. Sheela (PW-15), mother of the deceased and Bhupender (PW-9),
brother of the deceased have levelled serious allegations of cruelty and
harassment against the appellants-convicts and Ajit Singh.

60. This Court is of the view that there is a ring of truth to the
testimonies of Kailash Chand (PW-5), Smt. Sheela (PW-15) and

Crl.A.No. 492/2017 Ors. Page 49 of 53
Bhupender (PW-9) as they have candidly admitted that till the date of
marriage, none of the accused had made any demand for dowry. If
Kailash Chand (PW-5), Smt. Sheela (PW-15) and Bhupender (PW-9)
intended to falsely implicate all the accused, they would have made
allegations of demand for dowry against them for the period even prior to
the date of marriage.

61. Further, the aforesaid testimonies have been partially corroborated
by Mr. Amit Malhotra, (PW-11), Sales Manager with Nimbus Motors Pvt.
Ltd. (Hyundai) inasmuch as he deposed that one I-10 Era Model Hyundai
car of white colour had been booked in the name of Ajit Singh, father of
the accused-convict Vikrant by Bhupender (PW-9), brother of the
deceased for which the initial amount of Rs.90,000/- had been paid by
Bhupender (PW-9). The relevant portion of the testimony of Mr. Amit
Malhotra, (PW-11) is reproduced hereinbelow:-

―I am working as Sales Manager with Nimbus Motors Pvt. Ltd.
(Hyundai) at A-109, Sector-5, Noida, UP since October 2011. I
have brought the case file of I-10 Car Chesis No.
MALAM51BLCM085088 and Engine No. G4HGBM424773. I
have also brought the office copy of order booking from bearing
no. 2160 in respect of one I-10 Era model car of white colour
which was booked in the name of one Ajit by Bhupender on
19.01.12. I had handed over the copy of this receipt to the IO
vide seizure memo Ex. PW11/A which bears my signatures at
point A and copy of the form is Ex. PW11/B (Original seen and
returned). As per report, name of the contact person is Kailash
Chand and his mobile no. 9310428116 and initial
payment/booking payment of Rs.90,000/- cash was made by
Bhupender.‖
(emphasis supplied)

Crl.A.No. 492/2017 Ors. Page 50 of 53

62. As the offence of cruelty is normally committed within the four
corners of a house and not talked about in the open till the ‗tipping point'
is reached, this Court is of the view that the testimonies of Kailash Chand
(PW-5), Smt. Sheela (PW-15) and Bhupender (PW-9) stand sufficiently
corroborated.

63. The finding of the trial court that the presumption under Section
113B of the Evidence Act had been rebutted by cogent and convincing
evidence is incorrect inasmuch as no defence evidence had been led by
the accused, in particular with regard to the I-10 Hyundai car.

64. This Court is further of the opinion that the nature and extent of
injuries suffered by the deceased Neeta @ Vineeta cannot be attributed to
‗sudden gush of blood'.

65. Consequently, all three accused persons namely, Dhanesh, Vikrant
and Ajit Singh are held guilty of offence under Section 498A/34 IPC.

COURT'S DIRECTION

66. Before parting with this case, we must state that the scene of crime
had not been properly captured by the police inasmuch as there is no
public witness to prove as to what transpired immediately after the
incident of murder. Contemporaneous wireless log indicate that a large
public gathering had assembled at the scene of crime and they were so
incensed by the murder of a recently married lady who was nine month‟s
pregnant that they wanted to physically harm the appellant-convict
Vikrant and wanted to ghearao the police station. The relevant extract of
the wireless log is reproduced hereinbelow:-

Crl.A.No. 492/2017 Ors. Page 51 of 53

                     "xxxx       xxxx         xxxx        xxxx

R77 R1 A call regarding quarrel at r/o 13/2, Kalyanpuri got
recorded
R1 R77 The call was recorded
R1 R77 RCD search
R1 R77 To be recorded. Vikrant S/o Ajit singh R/o 13/2,

Kalyanpuri has murdered his wife who is present at
the spot and I am taking him to PS Kalyanpuri.
The dead body is lying at the spot. A lot of people
have assembled here who are very angry.

R1 R77 To be noted. The people are assembling here and
they are ghearoing the police station..........‖
(emphasis supplied)

67. However, in the present case, the only public witness Mr. Amrish
Kumar (PW-3) has resiled from his statement to the police.

68. Since the PCR vans are normally the first responders and reach the
scene of crime within few minutes of the call having been made or
information being received of any crime, this Court directs the
Commissioner of Police, Delhi Police that all PCR vans be equipped,
within a reasonable time, with either a mobile phone or an i-pad or any
other appropriate audio and visual equipment so that they can record the
contemporaneous scene of crime and tender the same in Court as legal
evidence. For this purpose, appropriate training should also be imparted to
the police personnel.

CONCLUSION

69. In view of the aforesaid findings, while the Crl. A. 628/2017 filed
by appellant-convict Vikrant is dismissed and his order on sentence is

Crl.A.No. 492/2017 Ors. Page 52 of 53
upheld, the Crl.A.492/2017 filed by appellant-convict Dhanesh and
Crl.A. 451/2018 filed by appellant-complainant Kailash Chand are partly
allowed inasmuch as the conviction and sentence of Dhanesh under
Section 302 IPC is set aside but Dhanesh, Vikrant and Ajit Singh are
convicted under Section 498A/34 IPC. Dhanesh, Vikrant and Ajit Singh
are sentenced to three years simple imprisonment with a fine of Rupees
Ten Thousand each. Since Dhanesh and Ajit Singh have already
undergone imprisonment for over three years, they are deemed to have
undergone the sentence provided they deposit the fine within a period of
six weeks. Copy of judgment be sent to appellant-convict Vikrant through
Jail Superintendent. Copy of judgment be given dasti to Dhanesh and Ajit
Singh.

MANMOHAN, J

SANGITA DHINGRA SEHGAL, J
JULY 08, 2019
KA/js/rn

Crl.A.No. 492/2017 Ors. Page 53 of 53

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation