Shyam Dev Yadav v. The State Govt of NCT Delhi

judgment and order dated

12.7.2007, the learned Trial Judge has convicted the appellant, holding that the testimony of PW-7, PW-8, PW-11 and PW-12 established that the appellant was present in his jhuggi in the intervening night of 14th – 15th April 2000 and was seen leaving the jhuggi at around 3:30 AM and soon thereafter his wife was found murdered. It has been held that being last seen with his wife in the jhuggi and the conduct of absconding were sufficient to convict the appellant for the offence he was charged of.

¶25It is urged by learned counsel for the appellant that

it is strange that neither PW-7 nor PW-8 nor PW-11 heard any cries of the deceased. It is urged that when a person is strangulated there is bound to be resistance and some kind of gargling sound, which would attract people in the neighbourhood.

¶26We fail to understand as to where would this argument anchor? That the deceased died inside her jhuggi and was strangulated is a matter of fact spoken by the dead body itself and the place wherefrom the dead body was recovered. It is not in dispute that the cause of death of the deceased was asphyxia resulting due to strangulation and that the place of death is the jhuggi where the deceased resided with the appellant. The place of death has not been challenged evidenced by the fact, that not a suggestion has been put to any witness that Sumitra"s body was not found inside the jhuggi.

¶27Obviously, nobody heard the cries of the unfortunate woman when she was being strangulated. The reason is not which cannot be ascertained. Wife beating in jhuggis is a day and night phenomenon in the metropolitan city of Delhi. The cries of anguish of a woman do not attract any summons for rescue in the metropolitan city of Delhi, where the concern of everyone is to earn his bread and butter. Human values have no place in such a system.

¶28The minor variations in the testimonies of the witnesses noted herein above, are of hardly any significance and consequence. Minor embellishments and improvements which did not impinge upon the substratum of the testimony of a witness are irrelevant. The reason is obvious. There is always a hiatus between the date of a crime and the date when the witness appears in the Court. With passage of time, either memory fails or it does happen that a witness, which keeps on thinking about a particular incident starts adding some marginal facts.

¶29We eschew reference to the part of the testimony of the father of the victim wherein he has stated that he had witnessed a quarrel between the appellant and the deceased at 11:00 in the night. Said statement does not form part of his statement recorded by the police.

¶30But, we may note that in his statement recorded by the police he has referred to a quarrel between the appellant and his daughter at 11:00 PM in the night. The only improvement made by him, while deposing in Court, is that of intervening in the quarrel. What is relevant is that PW-8 and PW-11, both have deposed of the appellant"s presence at the temple of Goddess Kali at 1:30 a.m. i.e. in the middle of the night intervening 14th – 15th April 2000 and thereafter going to his jhuggi.

¶31The suggestion of the appellant"s counsel to Kumari Sapna PW-12 that the appellant returned home in the early hours of the morning after having completed his work, is suggestive of the fact that the appellant took a plea of alibi. The testimony of PW-8 and PW-11 disproves the theory of alibi.

¶32Kumari Sapna PW-12 has corroborated the testimony of PW-8 and PW-11 with reference to the presence of the appellant in the jhuggi in the intervening night when the offence took place. Sapna has been subjected to cross-examination and has withstood the same.

¶33The evidence on record establishes the following:-

(i) The appellant was present in the jhuggi along with his wife in the late hours of the night intervening 14th – 15th April 2000.

(ii) The wife of the appellant was found dead at around 5:00 AM.

(iii) The appellant was absconding and continued to remain absconding for over five months when he was arrested on 17.9.2000.

(iv) The deceased died due to strangulation.

(v) The post-mortem report Ex.PW-6/A evidences that the deceased was strangulated somewhere between 2:00 AM to 3:00 AM.

¶34The chain of circumstances is complete, wherefrom,

the only inference possible is that of the guilt of the appellant, for the reason, he has not explained as to what actually happened.

¶35The theory of last seen evidence requires that where the deceased is seen alive with an accused and so soon thereafter the deceased is found dead or injured and there is no possibility of any other person accessing the deceased, unless the accused explains the circumstance under which the deceased sustained the injuries or establishes that the deceased was alive when he and the deceased parted company, the accused must own up the guilt. It was held in the decision reported as AIR 2003 SC 3131 Mohibur Rahman Vs. State of Assam; there may be cases, where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind is persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the deceased suffered death or should own the responsibility for homicide.

¶36A feeble attempt has been made to argue that obviously something would have happened which motivated the appellant to do what he did. The argument is suggestive of a quarrel between the appellant and his wife. Obviously, the attempt is to try and bring the case within Exception IV to

Section 300 IPC and take the trajectory of the offence from Section 302 IPC to Section 304 Part-I IPC.

¶37We find no evidence of a sudden quarrel. No witness has deposed to any sudden quarrel. In his statement under Section 313 Cr.P.C. the appellant has not justified his action by pleading that he acted on an impulse and upon a sudden quarrel.

¶38The appellant has been sentenced to undergo imprisonment for life.

¶39We concur with the view taken by the learned Trial Judge while convicting the appellant for the offence punishable under Section 302 IPC as per judgment and order dated

12.7.2007.

¶40We concur with the sentence of imprisonment for life imposed by the learned Trial Judge upon the appellant.

¶41The appeal is dismissed.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

MAY 25, 2009 Dharmender

i.4 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision : 25th May, 2009 + CRL. APPEAL NO.823/2007 SHYAM DEV YADAV ..... Appellant Through: Ms.Purnima Sethi, Advocate. versus THE STATE NCT OF DELHI ..... Respondent Through: Ms. Richa Kapoor, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether judgment should be reported in Digest? Yes : PRADEEP NANDRAJOG, J. (Oral) 1. At 5:10 AM on 15.4.2000, DD No.34, Ex.PW-4/A, was recorded by Const. Jaibeer PW-4 recording that Sumitra, wife of the appellant, resident of Jhuggi No.CN-531 Rajasthani Basti, Yamuna Pushta, had been murdered by her husband. 2. A copy of the DD entry was handed over to SI Pradeep Kumar PW-17, who accompanied by ASI Satpal, HC Ramavtar, Const. Kender Pal and Const. Jatinder, proceeded to the place where the crime had been committed. 3. Inspector Ashok Kumar Saxena PW-20 posted as the SHO of the police station, was given telephonic information about the crime. He too proceeded to the spot and reached contemporaneously when SI Pradeep Kumar and the other police officers reached the place of the occurrence. 4. The police officers met Narayan Mandal PW-11, the father of the deceased named Sumitra, who informed that he was a resident of a jhuggi in the same slum and that the appellant was married to his daughter and the appellant used to quarrel with her. That around 5:00 AM, Sapna, the elder daughter of the deceased came crying to his jhuggi. She informed that her mother was bleeding through the nose and had been killed by her father. The statement, Ex.PW-11/A of Narayan Mandal was recorded by Inspector Ashok Kumar Saxena, who made an endorsement, Ex.PW-20/A, thereon and by 7:00 AM forwarded the statement and the endorsement for an FIR to be registered. 5. At the police station, HC Dharambir Singh PW-1, received the statement and the endorsement afore-noted at about 7:15 AM and registered the FIR Ex.PW-1/A at 7:15 AM. 6. The dead body of the deceased was sent for post- mortem to the Civil Hospital Mortuary, Subzi Mandi. Dr.Ashok Jaiswal PW-6, conducted the post-mortem and prepared the report Ex.PW-6/A noting therein the under-noted external injuries:- "There was a brownish ligature constinction abrasion mark with bruised margins seen almost horizontally encircling the upper middle part of neck placed 5 cm below chin in midline with neck in extended position, width in front is 1.8 cm. On left side it is seen running horizontally placed 3.5 cm below angle of mandible to back of neck, width 1.7 to 1.8 cm, dark brown with bruising in, with contused margins on right side. It was again running horizontally, 3.3 cm below angle of mandible meeting with the mark on left side at the nape of neck, dark brown in colour with bruise margin 1.6 to 1.8 cm. No ligature material in situ. No other injury seen on the body." 7. The internal injuries noted were, haemorrhage of the subcutaneous tissue of the right parathyroid region. He opined that the cause of the death was asphyxia consequent to ligature constriction of neck and that the same was sufficient to cause death in ordinary course of nature. It was opined that the deceased had died approximately 36 hours prior to the time when the post-mortem was conducted. It is apparent that as per the post-mortem report the deceased was strangulated between 2:00 AM to 3:00 AM in the intervening night of 14th – 15 April 2000. 8. At the spot, the police personnel, namely, SI Pradeep Kumar and Inspector Ashok Kumar Saxena conducted the investigation when they reached the jhuggi somewhere around 5:15 AM. A rope was seized, as recorded in the seizure memo Ex.PW-11/B. Ajay Kumar PW-2, was summoned who took photographs Ex.PW-2/1 to Ex.PW-2/9; negatives whereof are Ex.PW-2/10 to Ex.PW-2/18. Inspector Ashok Kumar Saxena prepared the rough site plan Ex.PW-20/B at the pointing out