Punjab-Haryana High Court
Dildar Singh vs State Of U.T.Chandigarh on 16 January, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No.391-DB of 2008 1
Criminal Appeal No.822-DB of 2008
In the High Court of Punjab and Haryana at Chandigarh
Date of decision:January 16, 2012
Criminal Appeal No.391-DB of 2008
Dildar Singh ......Appellant
Versus
State of U.T.Chandigarh .......Respondent
Criminal Appeal No.822-DB of 2008
Sheetal @ Sheeta ......Appellant
Versus
State of U.T.Chandigarh .......Respondent
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.Akshay Bhan, Advocate
for the appellant in CRA No.391-DB of 2008.
Mr.Terminder Singh, Advocate and
Mr.Ashish Kumar, Advocate
for the appellant in CRA No.822-DB of 2008.
Mr.Rajiv Sharma, Standing counsel for U.T.
****
JUDGMENT
Criminal Appeal No.391-DB of 2008 2
Criminal Appeal No.822-DB of 2008
SABINA, J.
Vide this judgment, the above mentioned appeals will be disposed of as these have arisen out of a common incident/ judgment.
The present case relates to murder of a lady in room No.402, Hotel Shivalik View, Chandigarh beteen 6.20 pm to 8.45 pm on 10.12.2004. The prosecution has been able to crack the present case mainly with the help of mobile phone call records.
The prosecution case was set in motion on the basis of the statement of complainant Laxman Singh, who was working as room attendant in the said hotel, recorded by Sub Inspector Nasib Singh on 10.12.2004. At about 8.45 pm, complainant was present on the 4th floor of the hotel. Sukhwinder Singh, plumber, informed the complainant that the guest of room No.301 had made a complaint regarding leakage of water. On checking, it transpired that water tap of room No.402 was on. On verifying from the computer, they found that room No.402 was locked. However, nobody responded to the knocking at the door. The room was opened with the help of master key. The lights of the room were found to have been switched off. When they switched on the lights and looked into the bathroom it was found that the water tap of the bath tub was running and a lady was lying in the bath tub in a nude condition. There were big blood stains in the tub. Signs of physical violence were also noticed on the face of the lady. The curtain of the bathroom was lying on the floor. Blood stains were also seen on the walls of the bathroom. Television in the room was on at its full volume. The complainant Criminal Appeal No.391-DB of 2008 3 Criminal Appeal No.822-DB of 2008 informed the security officer. On enquiry, it revealed that a boy named Bunty had booked room No.402 at about 6.20 pm. On the basis of the statement of the complainant formal FIR No.551 was registered on 10.12.2004 at police Station, Sector 17, Chandigarh under Section 302 of the Indian Penal Code, 1860 (IPC for short).
Inspector Nanha Ram on reaching the spot took over the investigation from Sub Inspector Nasib Singh. At that time, Central Forensic Science Laboratory (CFSL for short) team, photographer and dog squad were already present at the spot as they had been called by Sub Inspector Nasib Singh. He lifted blood stains from the body of the deceased with cotton swabs. He also took in possession the hair found in the right hand of the deceased, three towels, three bed sheets, one pair of shoes, one sun-glasses, ladies clothes, two cups and a wrapper. One cash receipt and key holder were also taken in possession. He prepared the inquest report qua dead body of the deceased. He verified call details made from the room which were disclosed to him by Deepak Chhiber. A call had been made from room No.402 at 18:22 hours on phone No.9814153100. From the counter of the hotel, he took in possession guest detail card. As per the same, the name of the guest was Bunty, resident of WZ-196 Baldev Nagar, Ambala. He prepared rough site plan qua the spot and recorded the statement of receptionist Jyoti. Telephone No.9814153100, on verification, was found to be in the name of Kulwinder Singh, resident of House No. 683, Dadu Majra Colony, Chandigarh. The said Kulwinder Singh was joined in investigation Criminal Appeal No.391-DB of 2008 4 Criminal Appeal No.822-DB of 2008 and his statement was recorded. He identified the dead body of the deceased and disclosed that he had brought deceased Muskan along with accused Sabby from Sector 38 West market and had taken them to Sector 35 before dropping them in Hotel Shivalik View. At about 6.15 pm, Muskan had called him and had asked him to come at 8 pm to the hotel. Kulwinder Singh disclosed that mobile phone No. 9814153100 was in his name.
On 11.12.2004, dead body of deceased was identified as that of Ravinder Kaur @ Muskan by her father Darshan Singh and brother Paramjit Singh, who had come from Chamba and thereafter, the dead body was sent for postmortem examination.
On 12.12.2004, the doctor kept the opinion pending qua the cause of death of the deceased till receipt of report of chemical examination. On 13.12.2004 statement of PW Ravi was recorded. On 14.12.2004, both the appellants were arrested near Labour Chowk, Chandigarh. Dildar Singh was kept in a muffled face for identification parade. Both the accused were brought to police station and were produced in the Court on 15.12.2004. Appellant Dildar Singh refused to participate in the identification parade on an application moved by the investigating agency.
On 15.12.2004, statement of Jai Inder Pal Singh was recorded and record from his shop was taken in possession. Bill, vide which appellant Sheetal had purchased the sim from Jai Inder Pal Singh was taken in possession.
On 17.12.2004, appellants were produced before the Magistrate for obtaining their samples of hair and saliva. Criminal Appeal No.391-DB of 2008 5 Criminal Appeal No.822-DB of 2008 Record qua stay of appellants in hotel Park View on 9.12.2004 was taken in possession. On the basis of the disclosure statement suffered by appellant Dildar Singh, one blood stained jersi and one kara were got recovered by him on 19.12.2004 from the disclosed place and the same were taken in possession. Both the appellants refused to give their specimen signatures on 20.12.2004, on an application moved by the investigating agency before the Magistrate. The record of mobile phones was taken in possession by Sub Inspector Nasib Singh from Delhi and by Sub Inspector Jagdish Chander from Airtel, Mohali.
On 15.12.2004, appellant Dildar Singh suffered a disclosure statement and got recovered one mobile set of deceased Muskan, make 'Benq' from the disclosed place. During interrogation, appellant Sheetal suffered a disclosure statement and got recovered her mobile phone bearing No.9872380861 from the disclosed place. Application moved for permission to take samples of blood, hair, saliva and dental impression of appellant Dildar Singh was allowed by the Magistrate and thereafter, the samples were taken by the Medical Officer. The samples were deposited with CFSL on the same day by Sub Inspector Nasib Singh.
After completion of investigation and necessary formalities, challan was presented against the appellants.
Prosecution in order to prove its case examined 39 witnesses.
Appellant Dildar Singh, when examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short), after Criminal Appeal No.391-DB of 2008 6 Criminal Appeal No.822-DB of 2008 the close of prosecution evidence, pleaded as under:-
"I have been falsely implicated in the present case and the prosecution has withheld the material document like Ex.DA in which photographs of deceased was with number of persons as mentioned in Ex.DA even call details and phone numbers of various persons were not deliberately verified just to falsely implicate me in the present case. That there was a sketch of a influential person in news paper. The Tribune who was alleged to be a murderer of the deceased Muskan but that person has never been joined in the investigation. I have been falsely implicated in the present case. It is proved by this fact neither my hair sample nor my tooth sample tallied with the hairs allegedly recovered by the prosecution from the hand of the deceased and tooth bite on the body of deceased does not match with my sample tooth bite taken by prosecution during investigation. That prosecution has also not deliberately brought the original subscriber form of Ex.PCC as phone No.9810607200 does not belong to me and same was in the name of some one else and this suggestion has not even been denied by the witness who brought the record. The prosecution has with held the statement of material witnesses to falsely implicate me. I was illegally arrested on 13.12.2004 thereafter, I was involved in the present case."Criminal Appeal No.391-DB of 2008 7
Criminal Appeal No.822-DB of 2008 Appellant Sheetal, when examined under Section 313 Cr.P.C., after the close of prosecution evidence, pleaded as under:-
"I have been falsely implicated in this case and the prosecution has with held the material evidence like Ex.DA and Ex.D4 just to falsely implicate me in the present case. That the prosecution has deliberately not sent Ex.PV for comparison as the same does not contain my signatures even no enquiry has been made from the office of the Airtel office during investigation regarding the ownership of mobile phone No.9872380861 and mobile No.9872925026 deliberately. It is further stated that I was illegally arrrested on 13.12.2004, when I was sitting in the office of Advocate Ashok Chauhan and some other Advocates. Thereafter, present false case was planted against me. It is further submitted that I did not knew Mustkan or Dildar even prosecution has not verified phone number and name of the customer mentioned in Ex.PDDD and Ex.PEEE to verify to the persons who made calls to above said mobile numbers to know this fact actually whether these mobiles numbers were used by Muskan or me as the prosecuting agency knew this fact that these mobile numbers were used by some other persons as the prosecution was knowing this fact that mobile does not belong to me and as per record Ex.PD there has been call received at 8.39 pm by mobile No.9825204004 but the said customer or the owner of the Criminal Appeal No.391-DB of 2008 8 Criminal Appeal No.822-DB of 2008 mobile phone number has not been brought on record. Similarly, other customers, who made calls to these numbers has not been brought on record just to conceal correct facts from this Hon'ble Court. Even Preeti who as per Airtel company record, Ex.D4 is the customer of mobile No.9872880861 has not been brought on record and Ex.D4 has been withheld by the prosecution from this Hon'ble Court. The witness Ravi and Manpreet Singh are tout witnesses of the police even as per summons sent to them on various occasions by this Hon'ble Court report has come that they are not residing there. That PW MMHC Balbir Singh has clearly stated that he was transferred prior to 19.12.2004 and how the case property was deposited with him."
The appellants examined 18 witnesses in their defence. The trial Court vide judgment/ order dated 29.4.2008/ 30.4.2008 convicted and sentenced the appellants for commission of an offence under Section 302 read with 120-B IPC. Hence, the present appeals by the appellants.
Learned counsel for the appellants have submitted that the prosecution had miserably failed to prove its case. No reliance could be placed on the statement of PW Ravi, before whom appellant Sheetal had suffered an extra judicial confession. There was no occasion for appellant Sheetal to have suffered an extra judicial confession before him. The appellants had no motive to commit the murder of the deceased. The prosecution had failed to Criminal Appeal No.391-DB of 2008 9 Criminal Appeal No.822-DB of 2008 establish that the appellants had stayed in Park View hotel on the day of occurrence. As per the expert, the questioned handwriting in the record of the hotels did not match with the handwriting of appellant Dildar Singh. The witnesses examined from both the hotels have failed to identify the appellants. The recovery of jersi had been falsely foisted on the appellants. DW-3 H.L. Syal deposed that from 10.12.2004 to 13.12.2004 there was haze. There was fog on 20.12.2004. There had been rain in the area on 19.12.2004 up to 8.30 am on 20.12.2004. Hence, no blood stains could have been retained on the jersi alleged to have been recovered on the basis of the disclosure statement suffered by appellant Dildar Singh. The hair in the hand of the deceased did not match with the sample of hair of appellant Dildar Singh. The bite marks lifted from the body of the deceased did not match with the dental impressions of appellant Dildar Singh. The recovery of mobile phone from the appellant had been falsely foisted on him as the phone had already been recovered from the house of the deceased on 11.12.2004. As per the investigating officer, the appellants were arrested on 14.12.2004, whereas, as per PW-30 Manpreet Singh, accused Dildar Singh had been arrested on 13.12.2004. Appellant Dildar Singh had been described as a person supporting a silver ear-ring by PW Kulwinder Singh and Jyoti when their statements were recorded under Section 161 Cr.P.C.. However, no such ear-ring was being worn by the said appellant when he was arrested nor any effort was made to establish as to whether he did have his ear pierced or not. The call details did not connect the appellants with the commission of crime. Criminal Appeal No.391-DB of 2008 10 Criminal Appeal No.822-DB of 2008 Learned State counsel, on the other hand, has submitted that as per the report of the CFSL, the profile lifted from one jersi seized from appellant Dildar Singh matched with the blood lifted from the crime spot. From the call details brought on record, it was evident that appellants Dildar Singh and Sheetal had been in contact with each other. After the crime, mobile phone of the deceased had been used by appellant Dildar Singh to remain in touch with appellant Sheetal. PW-25 had brought the deceased as well as appellant Dildar Singh to hotel Shivalik View. A call had been made by deceased Muskan to PW-25 from hotel Shivalik View.
After hearing learned counsel for the appellants as well as learned State counsel and going through the record available on the file carefully, we are of the considered opinion that the present appeals deserve dismissal.
PW-22 Dr. Honney Sawhney deposed that on 12.12.2004, he along with doctor Bindu Bajaj, doctor N.K.Kaushal and doctor K.H.Chavali, conducted postmortem examination on the dead body of deceased Ravinder Kaur @ Muskan and had found following injuries on her person :-
"1. Contusion 4 cm x 5 cm, red in colour over both eye lids of left eye.
2. Contusion 3 cm x 4 cm, red in colour over the prominence of right cheek bone with 2 laceration measuring 1.5 cm x 0.2 cm x muscle deep and 0.5 cm x 0.2 cm x muscle deep.
3. Laceration of upper lip 2 cm x 1 cm x muscle deep Criminal Appeal No.391-DB of 2008 11 Criminal Appeal No.822-DB of 2008 situated just right of midline along with laceration of frenulum of upper lip measuring 1 cm x 0.5 cm x bone deep with loosening of underlying tooth (right upper central incisor).
4. Laceration 0.5 cm x 0.1 cm x muscle deep on lower lip situated 1 cm to the left of mid line.
5. Circular contusion, red, 3.5 cm x 3 cm on the right side of chin. 3 cm away from midline with a transverse laceration on its upper part measuring 1 cm x 0.2 cm x muscle deep.
6. Contusion existing in the front of right shoulder 12 cm x 5 cm blue in colour.
7. Imprint abrasion ovoid in shape with teeth marks (bite marks) present over outer aspect of right arm, 20 cm below tip of shoulder and 10 cm above tip of elbow with maximum diameter 4 cm and minimum diameter of 3 cm and Rem measuring 0.5 cm in thickness.
8. Scratch abrasion 0.5 cm x 0.2 cm red on dorsal aspect of right hand.
9. Lacerated wound 2 cm x 0.5 cm x muscle deep on the inner aspect of middle right sole."
The cause of death, disclosed after the receipt of the report of Medical Officer Ex.PSS, was as a result of organo phosphorous compound poisoning.
The present case rests on circumstantial evidence. The prosecution in order to establish its case had brought various Criminal Appeal No.391-DB of 2008 12 Criminal Appeal No.822-DB of 2008 circumstances on record to complete the chain of circumstances indicating towards the guilt of the accused.
In 'Manjunath Chennabasapa Madalli versus State of Karnataka', AIR 2007 Supreme Court 2080, it was held as under:-
"It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (AIR 1977 SC 1063); Eradu and Ors v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446) ; State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any Criminal Appeal No.391-DB of 2008 13 Criminal Appeal No.822-DB of 2008 reasonable doubt."
In the present case, the dead body of deceased Muskan was noticed by complainant-room attendant of hotel Shivalik View. Thereafter, the police was informed and investigation of the case started. The first clue the prosecution lifted in the case was a call made from room No.402 of the hotel Shivalik View to PW-25 Kulwinder Singh at 6.24 pm on the day of occurrence.
PW-25 Kulwinder Singh deposed that he was residing with his family in house No.683 Dadu Majra Colony, Sector 38 West, Chandigarh. He was driving a three wheeler bearing No. PB-12-F- 6600. On 10.12.2004, he had been called in the market of Sector 38 West by Jyoti on his mobile phone No.9814153100 and he took her to South End hotel, Sector 35, Chandigarh. There Jyoti met Muskan. He saw that Muskan was arguing with two Hindu gentlemen. Then he took Jyoti to Shivalik View hotel and she went to room No. 402 along with Muskan. At about 6.30 pm, he received a phone call from Jyoti that the man had gone and he should come upstairs. He went to room No.402 at about 7 pm and saw Muskan with two Hindu gentlemen whom he had seen in hotel South End. Then he left the hotel along with Jyoti. The said witness to some extent supported the prosecution case and as per this witness he had seen deceased Muskan in room No.402 hotel Shivalik View on the day of occurrence up to 7 pm. As per Ex.PX, a call had been made from hotel Shivalik View, room No.402 on mobile phone No.9814153100 i.e. to PW-25 Kulwinder Singh. As per Ex.P-58, call details of the phone number of Criminal Appeal No.391-DB of 2008 14 Criminal Appeal No.822-DB of 2008 PW-25 Kulwinder Singh, he had received a call from land line No.0172-2700277 on 10.12.2004 at 18:24:23 hours. This leads to the inference that a call had been received by PW-25 Kulwinder Singh from hotel Shivalik View at about 6.24 pm on the day of occurrence. A perusal of Ex.P-58 further reveals that PW-25 had also received phone calls on 10.12.2004 at 11:22:11 hours and 16:46:44 hours from mobile number 09872925026. Ex.PS is the copy of the pre paid enrollment form filled in by deceased Ravinder Kaur @ Muskan qua mobile phone number 09872925026. Ex.PS was proved by PW-6 Sandeep Gupta. The said witness deposed that on 22.10.2004, sim card number 09872925026 Airtel was purchased from him by Ravinder Kaur. She had placed a copy of her driving licence with the form. Thus, it was established on record that a sim card number 09872925026 belonged to the deceased. PW-25 had, thus, received three calls from the mobile phone of deceased on 10.12.2004. This leads to the inference that he had also received the call from room No.402 of hotel Shivalik View from the deceased at 18:24:23 hours.
PW 4 Anil Grover and PW-7 Ajay Kumar did not identify the appellants as the persons, who had stayed in hotel Park View, Chandigarh. Similarly, PW-12 Jyoti, receptionist and PW-21 Ravijeet, bell boy of hotel Shivalik View, also did not identify the appellants when they were examined during trial. Apparently, the said witnesses were won over by the appellants during trial. It is a growing trend now-a-days for witnesses in a criminal case to turn hostile during trial. Apparently, the hotel employees had no Criminal Appeal No.391-DB of 2008 15 Criminal Appeal No.822-DB of 2008 relationship with the deceased and were won over during trial by the appellants.
The circumstance which connects appellant Dildar Singh with the crime is that blood was lifted from the spot of crime by the investigating agency. During investigation, appellant Dildar Singh suffered a disclosure statement and got recovered a jersi from the disclosed place. The argument raised by the learned counsel for the appellant that in fact, no blood stains could have been retained on the jersi at the time of its recovery due to rain, haze and mist fails to impress us. PW-34 Sub Inspector Nasib Singh and PW-35 Sub Inspector Nanhe Ram have categorically deposed that during investigation on 19.12.2004, appellant Dildar Singh suffered a disclosure statement and offered to get a kara and sweater from the disclosed place. Ex.PFFF is the disclosure statement suffered by appellant Dildar Singh. Ex.GGG is the memo qua recovery of the said articles got effected by the appellant in pursuance to his disclosure statement. A perusal of the same reveals that the kara as well as jersi had been kept concealed by putting them in a white polethene bag. The jersi was having blood stains on its right sleeve. Since the jersi had been kept concealed in a polethene bag, the blood stains could not have disappeared from the said article and remained intact. Hence, the argument raised by learned counsel for the appellants that no blood stains could have been lifted from the jersi due to rain, mists and haze is liable to be rejected.
The jersi recovered on the basis of the disclosure statement suffered by the appellant was sent to CFSL for comparing Criminal Appeal No.391-DB of 2008 16 Criminal Appeal No.822-DB of 2008 the same with the blood lifted from the crime spot. As per Ex.PW- 26/A, report of the CFSL, the profile obtained from the jersi was consistent with originating from evidence sample of blood lifted from the crime spot. The said report was proved by PW-26 Dr. Sanjeev. This is a material circumstance which connects the appellant with the crime.
The other material circumstance brought on record by the prosecution is the call details qua three mobile phones i.e. two belonging to the appellants and one belonging to the deceased.
PW-9 Jai Inder Pal Singh deposed that he was running a shop by the name and style of M/s Gift N.Greet in Sector 17, Chandigarh. On 10.12.2004, appellant Sheetal, present in the Court, had visited his shop for repair of her Nokia mobile set No.330 as its display screen was damaged. He replaced the screen of the said mobile and issued bill No.6921 dated 10.12.2004, Ex.PU, in this regard. On the same day, appellant Shettal took sim card No.9872380861 from him and filled up an enrollment form. He proved the said form Ex.PV. A perusal of Ex.PV reveals that mobile number 9872380861 was issued in favour of appellant Sheetal. Thus, it was established on record that appellant Sheetal was using sim No. 9872380861 at the time of occurrence.
During investigation, the call details qua mobile No.9810607200 were taken in possession. PW-36 R.K.Singh, Nodal officer, Bharti Airtel, has deposed that on 13.1.2005 on the asking of the police, he had given the details of subscribers' name, address and call details qua phone No.9810607200 from 1.10.2004 to Criminal Appeal No.391-DB of 2008 17 Criminal Appeal No.822-DB of 2008 15.12.2004. The name of the subscriber of the said phone number was Dildar Singh. He also proved the call details Ex.PCCC. Thus, it was established on record that appellant Dildar Singh was using mobile phone No.9810607200 at the time of occurrence.
A perusal of Ex.PDDD, call details qua phone No.9872925026, reveals that on 10.12.2004, four calls had been received on mobile phone of Muskan from the mobile phone number belonging to appellant Sheetal from 16:49 hours to 16:55 hours. Further from 17:10 hours to 17:31 hours. Number of calls were received on the mobile phone number of Muskan from the mobile phone number of appellant Sheetal.
Ex.PCCC/C is the call details qua phone number 9810607200 belonging to appellant Dildar Singh. A perusal of the same reveals that on 12.10.2004 between 16:31 hours to 19:39 hours four messages had been sent on mobile phone No.9872380861 belonging to appellant Sheetal. From the above call details/ message details, it is evident that both the appellants were in touch with each other at the time of crime.
On the basis of the disclosure statement suffered by appellant Dildar Singh, mobile phone belonging to the deceased was got recovered by him from the disclosed place. As per Ex.DA, recovery memo qua articles recovered from the house of deceased, one Benq-M 300 mobile phone, Model 56311, IMEI No.354207000692684 was recovered from the house of the Criminal Appeal No.391-DB of 2008 18 Criminal Appeal No.822-DB of 2008 deceased. However, during investigation at a later stage, the same mobile phone was shown to have been recovered on the basis of disclosure statement suffered by appellant Dildar Singh vide Ex.PAAA. Thus, there is discrepancy qua the recovery of mobile phone of the deceased but the fact remains that it is proved on record that the deceased was using her mobile phone bearing No.9872925026. Various calls had been made from the said phone number used by the deceased on the phone number of the appellant Sheetal.
A perusal of Ex.PCCC/E reveals that phone numbers 9872380861 belonging to appellant Sheetal and 9872925026 belonging to the deceased were used in the area of Chandigarh and then in Haryana. This shows that the appellants were present in the area of Chandigarh on the day of occurrence.
The prosecution also examined PW-31 Ravi, before whom appellant Sheetal had allegedly suffered an extra judicial confession. PW-31 deposed that on 13.12.2004, he had met appellant Sheetal at the bus stand as he was coming from Ambala at about 1.30/ 2 pm. Appellant Sheetal was perplexed and on persistent enquiry by him she told him that on 10.12.2004 Dildar Singh took Muskan to hotel Shivalik View and killed her in room No.402, whereas, she had stayed in hotal Park View. Thereafter, she had left for Delhi along with Dildar Singh. Appellant Sheetal sought his help to be produced before the police but then left from the spot. The statement of the said witness fails to inspire confidence as appellant Sheetal had no occasion to suffer an extra Criminal Appeal No.391-DB of 2008 19 Criminal Appeal No.822-DB of 2008 judicial confession before an un-known person PW-31 Ravi. Moreover, the said witness had not produced appellant Sheetal before the police.
As per the inquiry officer, appellants were arrested on 14.12.2004. So far as PW-30 Manpreet Singh is concerned, the said witness deposed that on 13.12.2004, he was present at the time of investigation of the case. Dildar Singh had already been arrested by the police and had suffered a disclosure statement. The said witness has proved the disclosure statement suffered by appellant Dildar Ex.PFFF. A perusal of Ex.PFFF reveals that the portion the date had been recorded is in a torn condition. However, the recovery on the basis of the said disclosure statement was got effected by appellant Dildar Singh vide Ex.PGGG. A perusal of the said document reveals that the same was executed on 19.12.2004. PW- 30 has deposed that after the appellant Dildar Singh had suffered the disclosure statement, they had gone to effect recovery in pursuance thereto. Thus, it is evident that Ex.PFFF was executed on 19.12.2004. It is possible that due to typographical error, the date was recorded as 13.12.2004 during trial, while recording the statement of PW-30 qua his participation in investigation proceedings. Hence, the argument raised by learned counsel for appellant Dildar Singh that recovery was effected from him before his arrest is liable to be rejected.
So far as motive qua commission of the crime in question is concerned, the prosecution has examined PW-25 Kulwinder Singh. The said witness has deposed that Muskan was arguing with two Criminal Appeal No.391-DB of 2008 20 Criminal Appeal No.822-DB of 2008 Hindu gentlemen qua money matter. Although, motive gains significance in a case based on circumstantial evidence but it is a very difficult arena for the prosecution to establish. It is difficult for the prosecution to establish what was going on in the mind of the accused at the time of occurrence.
It has been held by the Apex Court in Sheo Shankar Singh vs. State of Jharkhand and another 2011 (2) RCR (Criminal) 634 as under:-
"The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of this Court. These decisions have made a clear distinction between cases where prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eye witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eye-witnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely even if prosecution succeeds Criminal Appeal No.391-DB of 2008 21 Criminal Appeal No.822-DB of 2008 in establishing a strong motive for the commission of the offence, but the evidence of the eye-witnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye-witness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eye- witnesses. See Shivaji Genu Mohite v. The State of Maharashtra, (1973) 3 SCC 219, Hari Shanker v. State of U.P. (1996) 9 SCC 40 and State of Uttar Pradesh v. Kishanpal and Ors. (2008) 16 SCC 73."
It has further been held by the Apex Court in State through CBI vs. Mahender Singh Dahiya 2011 (1) RCR (Criminal) 706 as under:-
Upon consideration of the evidence on record, the High Court concluded as follows:-
"Bearing in mind the legal position emerging out of the said authorities and having regard to the totality of the facts and circumstances which can be said to have been established on record, it is not possible to infer any motive on the part of the appellant what to talk of a motive so strong to commit the crime. In assessing the evidence, the High Court was aware of the legal principles that absence of motive may not Criminal Appeal No.391-DB of 2008 22 Criminal Appeal No.822-DB of 2008 necessarily be fatal to the prosecution. Where the case of the prosecution has been proved beyond reasonable doubt on the basis of the material produced before the Court, the motive loses its significance. But in cases based on circumstantial evidence, motive for committing the crime assumes great importance. In such circumstances, absence of motive would put the Court on its guard to scrutinize the evidence very closely to ensure that suspicion, emotion or conjecture do not take the place of proof (See Surinder Pal Jain Vs. Delhi Administration, 1993 (3) RCR (Criminal) 195: 1993 Supp.
(3) SCC 681 and Tarseem Kumar Vs. Delhi Administration), 1994 Supp. (3) SCC 367. We may also notice here the observations in Subedar Tewari Vs. State of U.P., 1989 (1) RCR (Criminal) 74: 1989 Supp (1) SCC 91, wherein it has been observed that:-
"The evidence regarding existence of motive which operates in the mind of an assassin is very often than (sic) not within the reach of others. The motive may not even be known to the victim of the crime. The motive may be known to the assassin and no one else may know what gave birth to the evil thought in the mind of the assassin.."
Again reiterating the role played by motive in deciding as to whether the prosecution has proved the case beyond Criminal Appeal No.391-DB of 2008 23 Criminal Appeal No.822-DB of 2008 reasonable doubt against an accused, this Court in the case of Suresh Chandra Bahari Vs. State of Bihar, 1994 (3) RCR (Criminal) 1: 1995 Supp. (1) SCC 80 held as under:-
"Sometimes motive plays an important role and become a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act with illegal means with a view to achieve that intention. In a case where there is motive, it affords added support to the finding of the Court that the accused was guilty for the offence charged with. But the evidence bearing on the guilt of the accused nonetheless becomes untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to adopt a certain course of action leading to the commission of the crime."
In our opinion, the conclusion recorded by the High Court is in accordance with the aforesaid principles. Merely because the respondent objected to the behaviour of Namita towards her male friends at the birthday party of her sister Shiela would not be sufficient to hold that the Criminal Appeal No.391-DB of 2008 24 Criminal Appeal No.822-DB of 2008 appellant had the necessary motive to kill her. It is inconceivable that the respondent would have married Namita only for the purpose of committing her murder, that too on the very first night of their honeymoon. Both the trial court and the High Court, in our opinion, have correctly recorded the conclusion that it was in fact in the interest of the respondent that Namita had remained alive. The success of his very objective to remain permanently in England was dependent on the continuance of his marriage for at least another year.
24. We are also not much impressed by the submission of Mr. Malhotra that the simmering resentment which was caused by Namita's refusal to consummate the marriage would be sufficient to impel the respondent to commit her murder. In our opinion, the High Court has correctly concluded that the two letters Ext.CW-13 and Ex.CW-14 exchanged between Namita and Mahender would tend to show that respondent was in fact trying to make amends after the birthday party on 5th /6th April, 1979. There was no untoward incident thereafter. It is accepted by all that the marriage was duly registered on 26th May, 1979 and that the couple voluntarily left for the honeymoon.
25. The trial court upon examination of the entire evidence had in fact concluded that something had gone amiss in the hotel room occupied by Mahender and Namita on the night of 27th/28th May, 1979. If that be so, Criminal Appeal No.391-DB of 2008 25 Criminal Appeal No.822-DB of 2008 the High Court rightly concludes, that this fact alone would contradict the theory of respondent having any pre- meditated strategy or design for committing the murder of his wife. The High Court correctly concluded that it is highly improbable to comprehend that respondent had a predetermined mind or motive to cause the death of Namita on the honeymoon night itself at the first available opportunity of being in the company of the deceased in a closed room as suggested by the prosecution. Had the attitude of the parties been as suggested by the prosecution, they would not have agreed to a marriage followed by a honeymoon trip outside London. The High Court also noticed that there was nothing to suggest that Namita or her family members had apprehended any harm or threat to life of Namita at any stage till the couple left for the honeymoon on morning of 27th May, 1979. The High Court found it impossible to accept the prosecution theory that the respondent had married the deceased only with a view to do way with her to take revenge for her appalling behaviour at Shiela's birthday party. Had the respondent been so resentful, there was no question of the marriage being solemanised"
Thus, merely because the prosecution has failed to establish the existence of motive with the appellants to have committed the crime is not fatal to the prosecution case. Motive operates in the mind of the assailant and it is a very difficult arena for Criminal Appeal No.391-DB of 2008 26 Criminal Appeal No.822-DB of 2008 the prosecution to reach. In the present case, the motive was known only to the appellants or the deceased and hence, it was not possible for the prosecution to have established the same.
Ex.PO/2 reveals that three calls were made by the persons, who had taken room No.32 on 9.12.2004 namely Sabby on 10.12.2004. Call was made on phone No.09810878381 at 9.22 am and on the same number at 10.44 am and on phone No.9815551909 at 12.22 pm. A perusal of Ex. PEEE, call details qua appellant Sheetal reveals that at 19:27 hours on 12.10.2004 she had made a phone call to number 9815551909 and at 19:34 hours she had made a phone call to number 9810878381. Thus, the appellants had made phone calls on the same numbers on the same day from hotel Park View as well as the mobile phone carried by appellant Sheetal. This establishes that the appellants had taken room No.32 in hotel Park View on 9.12.2004 and had checked out on 10.12.2004 at about 8.30 pm . The said fact is corroborated from the statements of PW-4 and PW-7 to this extent.
Thus, in the present case, the prosecution has been successful in proving its case. Although the statement of Ravi PW-31 before whom, appellant Sheetal had allegedly suffered extra judicial confession, does not inspire confidence and the employees of hotel Park View and hotel Shivalik View have failed to identify the appellants yet material circumstances brought on record establish the presence of the appellants in Chandigarh on the day of occurrence. It is also established from call details that the appellants Criminal Appeal No.391-DB of 2008 27 Criminal Appeal No.822-DB of 2008 had taken a room in hotel Park View on 9.12.2004 and had checked out on 10.12.2004 at 8.30 p.m after the murder was committed. The call details established on record further establish the contact between both the appellants before and after the murder. The presence of appellant Dildar Singh at the spot is established from the record of the CFSL Ex.PW-26/A. As per the said report, the blood stains on the jersi of appellant Dildar recovered on the basis of his disclosure statement matched with the blood stains lifted from the scene of crime. The said circumstances establishe the guilt of the appellants beyond the shadow of reasonable doubt and negate their innocence. Learned trial Court had, thus, rightly convicted and sentenced the appellants for commission of offence under Section 302 read with Section 120-B IPC. No ground for interference is made out.
Accordingly, both the appeals are dismissed. Appellant Sheetal, who is on bail, be taken in custody forthwith to undergo the remaining part of her sentence.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
January 16, 2012
anita