Delhi District Court
State vs (1) Prince Kochar, on 30 May, 2019
SC No.56414/2016
IN THE COURT OF SH. GORAKH NATH PANDEY
ADDITIONAL SESSIONS JUDGE FAST TRACK COURT,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
CNR NO.DLWT010001382011
Sessions Case No. :56414/2016
FIR No. : 18/2011
Under Section : 302 IPC
Police Station : Maya Puri
IN THE MATTER OF:
STATE Versus (1) Prince Kochar,
S/o Sh. Devender Kochar,
R/o D1A/92, Janak Puri,
Delhi.
(2) Meenu Kochar,
W/o Sh. Naveen Kochar,
R/o D1A/92, Janak Puri,
Delhi.
Date of receiving the case upon committal : 24.05.2011
Date on which judgment was reserved : 30.05.2019
Date of pronouncement of judgment : 30.05.2019
Decision : Convicted
FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.1/76
SC No.56414/2016
JUDGMENT
1. The accused Prince Kochar was chargesheeted in case FIR No.18/2011, P.S Maya Puri for the commission of offence punishable under Section 302 IPC on the allegation that on the intervening night of 25.02.2011 and 26.02.2011, he committed murder of his wife namely Achal Kochar. Accused Meenu Kochar and Naveen Kochar were kept in column no.12 in the charge sheet.
2. Prosecution Version: 2.1 The case of the prosecution, as can be culled out from the charge sheet, is that in the intervening night of 25.02.2011 and 26.02.2011 at about 12:35 am, information was received at P.S Maya Puri regarding the admission of Achal in Bhagat Hospital in dead condition. On the basis of the said information, DD No.23B was recorded at PS Maya Puri and was assigned to SI Amit Kumar for inquiry. He alongwith Ct. Ranvir went to hospital. In the hospital, they found Achal Kochar, W/o Prince Kochar, aged about 27 years, R/o D 1/A92, Janakpuri, Delhi was admitted vide MLC No.395/A011 and on the said MLC, the doctor concerned has opined "brought to emergency on 26.02.2011 at 12:20 pm declared dead at 12:25 pm on examination". The dead body was also inspected. At that time, FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.2/76 SC No.56414/2016 deceased was wearing jewellery articles i.e. bangles, mangalsutra and ear rings. SI Amit Kumar also got removed the jewellery articles from the body of deceased through L/Ct. Uma Chaudhary and seized the same. There were abrasion marks on the face of the deceased on both sides. Since no eye witness met in the hospital, SI Amit Kumar went to the spot i.e. House No.D1A/92, Janak Puri, Delhi. In the mean time, SHO PS Maya Puri Insp. Sushil Kumar also reached the spot alongwith staff. Thereafter, SI Amit Kumar prepared rukka upon DD No.23B and sent the same to PS Maya Puri for registration of FIR through H. Ct. Banwari Lal with the request to assign the further investigation of the matter to SHO concerned. After registration of FIR, further investigation of this case was conducted by Insp. Sushil Kumar, SHO PS Maya Puri.
2.2 During the investigation, Insp. Sushil Kumar collected the MLC of the deceased from the doctor concerned and got conducted the postmortem on the body of deceased. After the postmortem, the dead body of the deceased was handed over to her relatives. He also collected all the documents regarding deceased from the hospital. He also inspected the spot and prepared site plan. Spot was also got inspected through crime team. Exhibits were also lifted from the spot and were deposited in the Malkhana.
FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.3/76 SC No.56414/20162.3 During the investigation, viscera of the deceased was also got preserved. Statements under Section 161 Cr. P. C. of the witnesses were recorded and inquiries were made from the suspects. Inquiry was also made from the accused Prince Kochar. During the inquiry, accused Prince Kochar confessed his guilt and made a disclosure statement that he was very annoyed from his wife as he used to quarrel with him on petty issues and that she used to threaten him to do something unpleasant to him (marne maarne ke dhamki daite thee) and due to the said reason, he tried to commit suicide twice. He disclosed that in the night of 25.02.2011, he and his wife Achal consumed liquor and thereafter, he committed the murder of his wife by pressing his mouth. Thereafter, accused Prince Kochar was arrested. During the investigation, two days PC remand of accused was also obtained by Insp. Sushil Kumar to collect evidence. 2.4 On 28.03.2011, further investigation of this case was transferred to Insp Mohan Lal, DIU from the order of Addl. C.P. West. During the course of investigation, Insp. Mohan Lal took the J/C remand of accused Prince Kochar. He got inspected the spot through CFSL Team. Hairs of deceased and one bottle of wine were also seized from the room of the deceased after taking the same into police custody. The said hairs and bottle of wine were thereafter sent to CFSL for examination.
FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.4/76 SC No.56414/20162.5 During the investigation, Insp. Mohan Lal collected the postmortem report of the deceased wherein the doctor has opined the cause of death due to asphyxia subsequent to smothering and throttling together and it was sufficient to cause death in ordinary course of nature.
2.6 During the investigation, the family members of the deceased also suspected involvement of Naveen (jeth) and Meenu Kochar (jethani) of the deceased in the commission of crime of present case. Therefore, as per the order of the court, their polygraph test were got conducted. Their nail clippings were also collected and sent to CFSL for examination. After the completion of investigation, charge sheet was filed against the accused Prince Kochar in the court on 24.05.2011. Since no clue was found against the suspects namely Meenu Kochar and Naveen Kochar, hence, they were kept in column no.12 in the charge sheet.
3. It is relevant to mention herein that during the course of trial, an application for summoning the accused Meenu Kochar under Section 319 Cr. P. C. was moved by the complainant which was allowed vide order dated 12.05.2014 and accused Meenu Kochar was summoned and charge was framed accordingly; the witnesses were recalled for examination.
FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.5/76 SC No.56414/20164. Charge: On 26.09.2011, charges for the commission of offence punishable under Section 302 IPC was framed against the accused Prince Kochar to which he pleaded not guilty and claimed trial.
On 26.07.2014, charges for the commission of offence punishable under Section 302 IPC read with Section 34 IPC was framed against the accused Meenu Kochar to which she pleaded not guilty and claimed trial. On the same day, an amended charge for the commission of offence punishable under Section 302 IPC read with Section 34 IPC was also framed against the accused Prince Kochar to which he pleaded not guilty.
5. Prosecution evidence: To prove the aforementioned charges against the accused persons, the prosecution examined 27 witnesses in all. For the sake of convenience, a brief description of all the prosecution witnesses as well as their testimonies and the documents relied upon them is stated hereinbelow:
S. NO. Name Exhibits Details of exhibits Description of testimony PW1 H.Ct. Jai Ex.PW1/A Copy of FIR He is DO and recorded the FIR Singh Ex.PW1/B Endorsement on and endorsed on rukka.
rukka.FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.6/76 SC No.56414/2016
PW2 Ct. Shiv He delivered the copy of DD
Dahan No.23B to SI Amit on
26.02.2011 near Link Road
Booth, D1 Block, Janak Puri at
around 01:00 pm.
PW3 Ct. Suresh He was posted as Fingerprint
Proficient with Crime Team
and visited the spot on
26.02.2011. He stated that no
finger prints were found or
developed by him at the spot.
PW4 SI Kuldeep Ex.PW4/A Scene of crime He was posted as Incharge,
Singh report. Mobile Crime Team and visited
the spot on 26.02.2011
alongwith his team and
inspected the scene of crime.
He alongwith his team also
visited Bhagat Hospital where
photographer took photographs
of the dead body. Thereafter, he
prepared the scene of crime
report.
PW5 H. Ct. Ex.PW5/A1 Photographs taken at He was posted as photographer
Devender to Bhagat Hospital. with Mobile Crime Team on
Kumar Ex.PW5/A14 the relevant day and visited the
scene of crime as well as
Ex.PW5/B1 Negatives of the Bhagat Hospital and took the to photographs. photographs.
Ex.PW5/B14 FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.7/76 SC No.56414/2016 PW6 Aman Puri Ex.PW6/A Statement of He is the brother of deceased.
identification of He deposed that on 26.02.2011 dead body. at about 12:30 pm, he came to know about the death of his sister Achal. Immediately, he reached at her matrimonial home where neighbours told him that Achal had been taken to Bhagat Hospital. Thereafter, he visited the hospital where he came to know that her sister had expired. He stated that his statement was also recorded by the police in the hospital wherein he told the police that accused Prince Kochar and his Bhabhi Meenu Kochar had killed his sister. He also identified the dead body of his sister.
PW7 H. Ct. Ex.PW7/A Seizure memos of On 26.02.2011, he took the Manish pullandas. suspect Navin Kochar to DDU Kumar Hospital for his medical examination and in the hospital, doctor concerned has handed over him three sealed pullandas pertaining to medical examination of Naveen Kochar, Prince Kochar and Meenu Kochar.FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.8/76 SC No.56414/2016
PW8 Raman Puri Ex.PW8/A Statement regarding He is the brother of deceased.
identification of He is the witness of last seen dead body. evidence.
Ex.PW8/B Complaint made by
him to SHO PS
Rajouri Garden.
PW9 Subhash Ex.PW9/A Complaint addressed He is the father of the deceased.
Puri to SHO PS Maya
Puri.
PW10 Insp. Ex.PW10/A Scaled site plan. On 22.05.2011, he inspected the
Mahesh spot and and prepared scaled
Kumar site plan.
PW11 Ct. On 26.02.2011, he alongwith
Bhimesh the IO and accused Prince
Kumar Kochar went to DDU Hospital
for the medical examination of
accused Prince Kochar and
doctor concerned had handed
over three sealed pullands to IO
who seized the same.
PW12 H. Ct. Ex.PW12/A Seizure memos of He joined the investigation on
Banwari pullandas of hair of 26.02.2011 with IO SI Amit
Lal deceased lifted from Kumar. He also identified the
bed, bed sheet and human hairs as Ex.P1, bed
one gents wear sheet as Ex.P2 and blue colour
FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.9/76
SC No.56414/2016
having stiffs stripped full sleeve shirt as
(dharidhar). Ex.P3.
Ex.PW12/B Arrest memo of
accused Prince
Kochar.
Ex.PW12/C Personal search
memo of accused
Prince Kochar.
PW13 Rachna Ex.PW13/A Complaint given by She is the real sister of accused
Puri her to SHO PS Prince Kochar and Bhabhi of
Rajouri Garden deceased. She is the witness of
against the accused. extra judicial confession made by accused Meenu Kochar to her.
PW14 H. Ct. Balu On 26.02.2011, he delivered the
Ram copy of FIR to ACP concerned
at about 06:30/07:00 pm.
PW15 Usha Puri Ex.PW15/A Complaint given by She is the mother of the
her to SHO PS deceased.
Rajouri Garden
against both the
accused persons.
Mark Photocopies of
PW15/PA & receipts of jewellery
PW15/PB purchased from
Tirupati Jewellers.
FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.10/76
SC No.56414/2016
Ex.PW15/PA Original receipts of
& jewellery purchased
Ex.PW15/PB from Tirupati
Jewellers.
PW16 Dr. Nishu Ex.PW16/A MLC No.3573, 3574 She proved the signatures of Dr.
Dhawan to & 3575. Alok on the said MLCs of
Ex.PW16/C accused Prince Kochar, Meenu
Kochar and her husband
Naveen Kochar.
PW17 Dr. Ex.PW17/A MLC of deceased. On 26.02.2011, he examined the
Shailendra deceased in Bhagat Hospital
Gaur and declared her brought dead
vide MLC Ex.PW17/A.
PW18 ASI Ex.PW18/A Seizure memo of On 05.03.2011, he alongwith
Kuldeep hairs of deceased. the IO and CFSL team visited
Singh the spot where IO seized the
Ex.PW18/B Seizure memo of exhibits.
Royal Stag Whisky
PW19 Dr. Komal Ex.PW19/A Postmortem report On 27.02.2011, he conducted
Singh of deceased. the postmortem on the body of
deceased and also given
subsequent opinion.
Ex.PW19/B Subsequent opinion
PW20 Smt. Shanti She used to household work in
the house of the deceased at the
relevant time. She deposed that
on 26.02.2011 at about 12:00
noon, he entered into the house
FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.11/76
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and seen that Achal Kochar was
lying down on her bed in her
room and she was covered up
with blankets and hence, he
thought that she was sleeping
and at that time, accused Prince
Kochar was not present in the
house. She further deposed that
she tried to wake up her but she
did not respond, hence she
raised alarm and family
members and neighbours of
accused gathered and they had
taken to deceased to the
hospital. Later on, IO of this
case met her and recorded her
statement and also inspected
the spot at her instance.
PW21 Ct. Ranbir Ex.PW21/A Seizure memo of He joined the investigation of
Kumar jewellery of this case on 26.02.2011 and
Singh deceased which was 27.02.2011.
removed from her
body by Lt. Ct.
Uma.
Ex.PW21/B Seizure memo of
pulanda of exhibits
of deceased i.e. cloth
parcel, viscera petty,
finger clipping and
blood sample.
FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.12/76
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PW22 Dr. A. K. Ex.PW22/A Polygraph report. He was posted as Sr. Scientific
Singh Officer, GradeI, CFSL, CBI,
New Delhi. On 05.05.2011, he
conducted the polygraph test of
accused Meenu Kochar and her
husband Naveen.
PW23 Dr. Aruna Ex.PW16/A MLCs of Prince He proved the signatures of Dr.
Singh to Kochar, Naveen Alok on the said MLCs.
ExPW16/C Kochar and Meenu
Kochar.
PW24 Retd. He is the 3rd IO of this case
Inspector and joined the investigation of
Mohan Lal this case on 28.02.2011,
02.03.2011, 05.03.2011 and
28.04.2011. He also prepared
the charge sheet. He also filed
the charge sheet.
PW25 L/Ct. Uma She joined the investigation of
Chaudhary this case on 26.02.2011 and
removed the jewllery items
from the body of deceased and
thereafter, visited to DDU
Hospital with accused Meenu
Kochar for her medical
examination where the samples
of nail of Meenu Kochar were
taken.
PW26 SI Amit Ex.PW26/A DD No.23B. He is the first IO of this case
Kumar Ex.PW26/B Endorsement on DD and joined the investigation on
No.23B. 26.02.2011 upon receipt of DD
Ex.PW26/C Disclosure statement No.23B alongwith Ct. Ranvir
FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.13/76
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of accused Prince and thereafter, on the next day.
Kochar. He also identified the jewellery
items removed from the body of
the deceased.
PW27 Retd. Insp. Ex.PW27/A Site plan of the spot. He is the 2nd IO of this case.
Sushil Ex.PW27/B Brief facts of the He proved the said exhibits;
Kumar. case prepared at the recorded the statements of
time of postmortem. members of crime team;
Ex.PW27/C Form 25.35 filled by recorded the statement of maid
him at the time of servant; interrogated all the
postmortem. suspects of this case; conducted
the arrest proceedings of
Ex.PW27/D Request of accused Prince Kochar; got
postmortem. conducted the postmortem on
Ex.PW27/E CFSL Report the body of deceased; handed
collected by him over the dead body of the
from CFSL, CGO deceased to her relatives;
Complex, Lodhi obtained PC remand of accused
Road. Prince Kochar and on transfer
Ex.PW27/F Application vide of this case to DIU, he handed
which the CFSL over the custody of the accused
result was filed in Prince Kochar, all the
the court. documents and both the
suspects to the IO Insp. Mohan
Lal. He also identified the
human hairs as Ex.P1, bed
sheet as Ex.P2 and blue colour
stripped full sleeve shirt as
Ex.P3.
FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.14/76
SC No.56414/2016
6. Statement of accused persons:
On 02.06.2018, the statements of the accused persons under Section 313 Cr.P.C were recorded wherein all the incriminating evidence and documents on record were put to them to which their stand was of general denial. They claimed that they were innocent and had been falsely implicated in the case by the police.
7. I have heard the Ld. APP for State and the counsel for the accused persons as well as the complainant. Record has also been perused.
8. Sh. Virender Singh, Ld. Addl. PP for the State and Ld. counsel for the complainant submitted that the prosecution has proved the circumstantial evidence against the accused persons beyond reasonable doubt and the circumstances proved by the prosecution unerringly points towards the guilt of the accused persons. The prosecution proved the presence of the accused persons in the room of the deceased on intervening night of 25/26.02.2011at around 1212.30 midnight. The injuries on the body of the deceased alongwith the postmortem report as proved by PW19 Dr. Komal Singh categorically point out towards her murder and there was no theft/robbery of any material from the said house. It is submitted that the murder has been FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.15/76 SC No.56414/2016 committed at the residence where the accused persons and the deceased were seen together and no cogent reply has been made regarding death of the deceased in the statements of the accused persons recorded under Section 313 Cr. P. C. There is no alternative defence by the accused persons nor there is any evidence of force entry into the room of the deceased from where the dead body was recovered and deceased was last seen in the company of the accused persons. He further submitted that the accused has not explained about any incriminating circumstance. He submitted that the accused has taken false plea in his examination under section 313 of the Cr.P.C. He submitted that nonexplanation of material circumstances and false answers strengthen the case of the prosecution. He submitted that the prosecution witnesses namely PW6 Aman Puri, PW8 Raman Puri, PW9 Subhash Puri, PW13 Rachna Puri and PW15 Usha Puri deposed regarding the case and proved regarding the affair between the accused persons. He submitted that the chain of circumstantial evidence proved by the prosecution is so complete that it leaves no space for any hypothesis consistent with the innocence of the accused persons. Mere simple denial regarding the incident by the accused persons is not sufficient to prove their innocence. He submitted that the prosecution has been able to bring the guilt of the accused persons.
The Ld. counsel for the complainant has relied upon the FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.16/76 SC No.56414/2016 judgment reported as - 2008 (4) Crimes 449 (SC) titled Mohd. Azad @ Samin Vs. State of West Bengal in support of the contentions that extrajudicial confession made by accused Meenu Kochar to PW13 Rachna Puri is reliable and admissible in evidence. He further relied upon the judgment of Hon'ble Supreme Court of Gajanan Dashrath Kharate v. State of Maharashtra decided on 26.02.2016 in Crl. Appeal No.2057 of 2010 and Trimukh Maroti Kirkan v. State of Maharashtra decided on 11.10.2006 in Crl. Appeal No.134 of 2005.
9. Ld. counsel for the accused submitted that the case of the prosecution was founded on two circumstances namely motive and last seen evidence. He submitted that the prosecution has not proved any of the circumstances against the accused persons. He submitted that the prosecution could not prove the motive of the commission of crime. He submitted that PWs examined by the prosecution failed to prove any illicit relationship of accused persons with each other and this fact is further corroborated in view of the polygraph test report Ex.PW 22/A as deposed by PW22 Dr. A. K. Singh. He submitted that motive attributed by the prosecution that the accused committed murder of Achal as she was a hurdle in illicit relation between accused persons remained unproved.
Ld. defence counsel for the accused persons further FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.17/76 SC No.56414/2016 submitted that motive is an important circumstance in a case of circumstantial evidence. He submitted that failure to establish motive for the offence is fatal to the case of the prosecution. He submitted that the theory of last seen evidence is not applicable in the case as the testimony of last seen witnesses namely PW8 Raman Puri is not reliable. He submitted that the prosecution failed to prove last seen evidence and prayed for acquittal of accused persons.
10. Ld. defence counsel contended that in a case based on circumstantial evidence, motive is an important incriminating circumstance and failure to prove it is fatal to the case of the prosecution.
EXAMINATION OF EVIDENCE AND ANALYSIS:
11. I begin quest with the usual mantra. Let us determine the nature of death of Anchal. Postmortem report Ex.PW19/A has been proved by PW19 Dr. Komal Singh and eight external injuries suffered on the dead body of deceased is reproduced as under:
External injuries:
(i) Linear abrasion vertically placed 2.7 cm below the lower lid of right eye approx 3.4 cm lateral to the right nostrils of size 3.2cm x 0.3cm;FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.18/76 SC No.56414/2016
(ii) Semi circular abrasion over the base of chin of size 1.2 cm x 0.4mm, 3cm below the lower margin of lower lip;
(iii) Cresentric abrasion 3.8 cm lower and lateral from the left angle of mouth of size 5.0mm x 3.00 mm;
(iv) 4.5 cm semi arch shaped abrasion present 5 cm lateral to left angle of mouth;
(v) Abrasion present in the inner surface of the left and right nostrils with bleeding profusely;
(vi) Punctate hemorrhagic sports present spreading anteriorly over the right side of the neck;
(vi) Abrasion over the outer surface of the left forearm horizontally placed, 6cm above the left wrist joint of size 1.2 cm x 0.3mm;
(vii) Linear nail abrasion present on the dorsum of the right hand just above the right thumb going towards the right wrist joint of size 5.6 cm x 1.0mm.
12. Before delving into the merits of the case, it would be appropriate to refer to the medical evidence adduced by the prosecution. Prosecution examined PW16 Dr. Nishu Dhawan, who deposed regarding the MLC Ex.PW16/A to Ex.PW16/C respectively of Prince Kochar, Meenu Kochar and Naveen Kochar. PW17 Dr. FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.19/76 SC No.56414/2016 Shailender Gaur has proved the MLC of deceased Achal Kochar vide Ex.PW17/A. PW19 Dr. Komal Singh, HOD, Forensic Medicine, DDU Hospital, who conducted the postmortem on the body of the deceased and deposed that the body of deceased Anchal Kochar (aged 27 years female) was brought for postmortem. She was brought dead in Bhagat Hospital, Janak Puri on 26.01.2011 at around 12:25 pm. On general examination, the nails were cyanosed, tongue clinched between the teeth, bleeding from nose. On external examination, no.1 to 8 injuries were found, as mentioned in postmortem report no.214/2011 dated 27.02.2011 on page 2 and detailed report is Ex.PW19/A bearing her signatures at point A on each page. The subsequent opinion after receiving the CFSL report no.2011/B/337 dated 21.09.2011 is Ex.PW19/B. The cause of death was asphyxia subsequent to smothering and throttling together. The asphyxia was sufficient to cause death in ordinary course of nature. Time since death in this case was approximately 24 hours prior to postmortem examination.
13. According to the postmortem report Ex.PW19/A, cause of death was 'asphyxia subsequent to smothering and throttling together. The asphyxia was sufficient to cause death in ordinary course of nature. The said report was further reiterated by final report Ex.PW19/B. From the above, it is evident that the deceased died an FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.20/76 SC No.56414/2016 unnatural death and her death was homicide.
14. The crucial question for consideration, therefore is, who is perpetrator of this crime.
15. Police machinery was set in motion on the basis of DD No.23B dated 26.02.2011 received through telephone and same was given to PW26 SI Amit Kumar, who deposed that on receipt of DD No.23B Ex.PW26A from Ct. Shivdaan, he alongwith Ct. Ranbir reached at Bhagat Hospital where he found deceased Achal Kohcar was admitted in hospital. He received the MLC whereby she was declared brought dead in the hospital. No eye witness met him in the hospital and thereafter, he went to the spot i.e. House No.D1A/92, Janak Puri, Delhi and the house was locked. He returned back to Bhagat Hospital and made endorsement on DD No.23B vide endorsement Ex.PW26/B. The crime team visited to the hospital and inspected the dead body; photographs of the dead body were taken; deceased was wearing jewellery which was removed and seized vide memo Ex.PW21/A. The dead body was sent to DDU Hospital through Ct. Ranbir for postmortem and in the mean while, the FIR was registered and the investigation was assigned to Insp. Sushil Sharma for investigation. Testimonies of all the police officials in regard to FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.21/76 SC No.56414/2016 investigation and the procedures carried during investigation remained consistent and despite lengthy crossexamination nothing material could be elicited to discredit their testimonies.
16. There is no eyewitness to the commission of crime. The present case is one of circumstantial evidence. Thus, there is a definite requirement of law that a heavy onus lies upon the prosecution to prove the complete chain of events and circumstances which will establish the offence and would undoubtedly only point towards the guilt of the accused. A case of circumstantial evidence is primarily dependent upon the prosecution story being established by cogent, reliable and admissible evidence. Each circumstance must be proved like any other fact which will, upon their composite reading, completely demonstrate how and by whom the offence had been committed.
17. A threeJudge Bench of Hon'ble Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, 1984 (4) SCC 116 held as under: '152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.22/76 SC No.56414/2016 which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343. This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail v. State of U.P., (1969) 3 SCC 198 and Ram Gopal v. State of Maharashtra, (1972) 4 SCC
625. It may be useful to extract what Mahajan, J. has laid down in Hanumant case (supra).
"10. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.23/76 SC No.56414/2016
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, where the observations were made: "19. Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) circumstances should be of a conclusive nature and FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.24/76 SC No.56414/2016 tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
18. The law relating to circumstantial evidence, as explained in several decisions including Sharad Birdichand Sarda v. State of Maharashtra AIR 1984 SC 1622, Tanviben Pankajkumar Divetia v. State of Gujarat (1997) 7 SCC 156, Harishchandra Ladaku Thange v. State of Maharashtra AIR 2007 SC 2957 and Vithal Eknath Adlinge v. State of Maharashtra AIR 2009 SC 2067 is fairly wellsettled.
19. Reference can be made to the case of Sanatan Naskar and FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.25/76 SC No.56414/2016 Anr. v. State of West Bengal, (2010) 8 SCC 249, where it was observed as follows: "27. There cannot be any dispute to the fact that it is a case of circumstantial evidence as there was no eyewitness to the occurrence. It is a settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt complete chain of events and circumstances which definitely points towards the involvement and guilt of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eyewitness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the accepted principles in that regard."
20. In Gagan Kanojia v. State of Punjab (2006) 13 SCC 516, the Supreme Court opined:
"9. Indisputably, charges can be proved on the basis of the circumstantial evidence, when direct evidence is not available. It is well settled that in a case based on a circumstantial evidence, the prosecution must prove that within all human probabilities, the act must have been done FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.26/76 SC No.56414/2016 by the accused. It is, however, necessary for the courts to remember that there is a long gap between 'may be true' and 'must be true'. Prosecution case is required to be covered by leading cogent, believable and credible evidence. Whereas the court must raise a presumption that the accused is innocent and in the event two views are possible, one indicating to his guilt of the accused and the other to his innocence, the defence available to the accused should be accepted, but at the same time, the court must not reject the evidence of the prosecution, proceeding on the basis that they are false, not trustworthy, unreliable and made on flimsy grounds or only on the basis of surmises and conjectures. The prosecution case, thus, must be judged in its entirety having regard to the totality of the circumstances. The approach of the court should be an integrated one and not truncated or isolated. The court should use the yardstick of probability and appreciate the intrinsic value of the evidence brought on records and analyze and assess the same objectively."
21. In view of the aforesaid principles governing the case based on the circumstantial evidence, let us turn to the case in hand. Now it FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.27/76 SC No.56414/2016 has to be examined as to whether accused persons are perpetrators of this crime. The incriminating circumstances relied upon by the prosecution to bring home the guilt of the accused persons are:
(i) Illicit relation between both the accused persons as motive of the commission of crime.
(ii) Extra judicial confession of accused Meenu Kochar made to PW13 Rachna Puri.
(iii) The deceased Achal was last seen in the company of the accused persons by PW8 Raman Puri in the night of 25.02.2011 and 26.02.2011at about 1212:30 midnight;
(iv) Absence of any explanation by the accused persons.
22. The above incriminating circumstances, in the light of material on record and the evidence produced during trial are dealt accordingly.
MOTIVE
23. The case of the prosecution regarding motive of the crime was that the accused Prince Kochar had illicit relation with accused Meenu Kochar and deceased was eliminated by way of this crime. To prove this fact of illicit relations, prosecution examined PW6 Aman Puri (brother of deceased), PW8 Raman Puri (brother of the deceased), PW9 Sbhash Puri (father of deceased), PW13 Rachna FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.28/76 SC No.56414/2016 Puri (sister in law of deceased) and PW15 Usha Puri (mother of deceased).
PW6 Aman Puri deposed regarding the illicit relations between accused persons. PW8 Raman Puri also deposed that after 06/07 months prior to the present incident, his sister used to remain under stress and depression "udas or paresan rehti thi". As and when she visited our house during this period, my mother asked her about the reason of her stress and depression then she told me, my brother, mother and my father while we were sitting together in my house that accused Prince Kochar and his bhabhi Meenu Kochar are having illicit relations with each other and I object in this regard.
PW9 Subhash Puri, PW13 Rachna Puri and PW15 Usha Puri also deposed to the same effect. During the cross examination of the said witnesses, several questions were asked regarding cordial relation between two families, attending of social functions of each other etc. and all the witnesses deposed that no complaint regarding the illicit relation was made against the accused persons. It is reiterated that all these witnesses categorically deposed regarding illicit relations between accused persons and no material contradiction is found in their testimony during their cross examination. It is true that there can not be direct evidence regarding such illicit relations between the accused persons but the testimonies of all the witnesses FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.29/76 SC No.56414/2016 examined by the prosecution in respect of the said relation in one way or the other remained controverted. The polygraph test report Ex.PW22/A is not helpful being only corroborative piece of evidence.
24. Motive is a mental state, which is always locked in the inner compartment of the brain of the accused and inability of the prosecution to establish the motive need not necessarily cause entire failure of prosecution.
In 'State of Himachal Pradesh vs. Jeet Singh' {1999 (4) SCC 370}: it was held that:
"No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it....."
25. It is settled legal proposition that even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance. However, if the genesis of the motive of the occurrence is not proved but if otherwise FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.30/76 SC No.56414/2016 the evidence is worthy of reliance, the testimony of the witnesses as to the occurrence could not be discarded only by the reason of the absence of motive.
26. There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. This view is fortified by the law laid down by the Apex Court in Sardul Singh v. State of Haryana reported in AIR 2002 SC 3462 wherein the Hon'ble Supreme Court held that the motive which is not always capable of precise proof, if proved, may only lend additional support to strengthen the probability of commission of the offence by the person accused but the absence of proof does not ipso facto warrant an acquittal.
27. While dealing with a similar issue, the Hon‟ble Supreme Court in State of U.P. v. Kishanpal and Ors. (2008) 16 SCC 73 held as under:
".....The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.31/76 SC No.56414/2016 motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction..."
28. In 'Paramjeet Singh vs. State of Uttrakhand', 2010 (10) SCC 439, Hon'ble Supreme Court held that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. Following was stated in a paragraph 54:
"So far as the issue of motive is concerned, the case is squarely covered by the judgment of this Court in Suresh Chandra Bahri (supra). Therefore, it does not require any further elaborate discussion. More so, if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.32/76 SC No.56414/2016 cannot be a ground to reject the prosecution case. (Vide: State of Gujarat vs. Anirudhsing [supra])"
In view of the above referred authorities,the contention of Ld. counsel for accused that for want of motive of the crime, the accused persons are entitled to be acquitted have no substance.
EXTRA JUDICIAL CONFESSON
29. As per the prosecution, accused Meenu Kochar had made an extra judicial confession before PW13 Rachna Puri. It has been repeatedly held that although an order of conviction can be passed based on extrajudicial confession but the Court must be extremely cautious and careful before relying on extrajudicial confession. Before the credibility of the extrajudicial confession can be considered, we deem it appropriate to revisit the law.
30. Hon'bale Supreme Court of India in the case of Baskaran And Another v. State of Tamil Nadu, reported at (2014) 5 SCC 765, held that if the extrajudicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can also solely form the basis of conviction. Relevant portion reads as under:
FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.33/76 SC No.56414/2016"17. It is no doubt true that this Court time and again has held that an extrajudicial confession can be relied upon only if the same is voluntary and true and made in a fit state of mind. The value of the evidence as to the confession like any other evidence depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. But it is not open to any court to start with the presumption that extrajudicial confession is insufficient to convict the accused even though it is supported by the other circumstantial evidence and corroborated by independent witness which is the position in the instant case. The Courts cannot be unmindful of the legal position that even if the evidence relating to extra judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction."
31. It would also be useful to refer to the observations made by the Supreme Court of India in the case of Rahim Beg v. State of U.P., FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.34/76 SC No.56414/2016 reported at (1972) 3 SCC 759, wherein it has been held as under:
"There was no history of previous association between the witness and the two accused as may justify the inference that the accused could repose confidence in him. In the circumstances, it seems highly improbably that the two accused would go to Mohammad Nasim Khan and blurt out a confession."
32. The law with regard to extrajudicial confession was discussed in detail by the Supreme Court in the case of Sahadevan and Another v. State of Tamil Nadu, reported at (2012) 6 SCC 403, wherein it has been held as under:
"14. It is a settled principle of criminal jurisprudence that extrajudicial confession is a week piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra judicial confession suffers from material discrepancies or inherent improbabilities and does FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.35/76 SC No.56414/2016 not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration."
22. Upon analysis of the aforesaid judgments, the following principles can be culled out:
(i) The extrajudicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extrajudicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extrajudicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(iv) Such statement essentially has to be proved like any other fact and in accordance with law."FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.36/76 SC No.56414/2016
33. A plain reading of the above principles makes it abundantly clear that an extra judicial confession can be safely made the basis of conviction of an accused, in the event the same, (i) is made voluntarily; (ii) inspires confidence; (iii) is corroborated by a chain of cogent circumstances and prosecution evidence; and (iv) does not suffer from any material discrepancies and improbabilities.
34. Keeping the aforesaid principles in mind, the extrajudicial confession of Mennu Kochar made to PW13 Rachna Puri is examined which is heavily relied upon by the State. PW13 Rachna Puri deposed as under: "on 26.02.2011, she had gone to the house of accused alongwith children of Prince Kochar. When she reached the house of the accused, her nephew Sahil gone to the room of accused Prince Kochar situated on the second floor of the house and started crying - "mummy kuch bol nahi rahi". Some public persons from the neighbourhood reached there in her presence and Prince Kochar was not present in the room. Public persons entered into the room of accused and removed Achal Kochar from bed lying in the said room in unconscious condition. She alongwith her mother went to the ground floor and thereafter, Achal Kochar was taken to FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.37/76 SC No.56414/2016 Bhagat Hospital by the public persons of the locality. When Achal Kochar was removed by the public persons, her Bhabhi Meenu Kochar came to her at the ground floor and told regarding altercation taken place between her, accused Prince Kochar and Achal Kochar in the intervening night of 25/26.02.2011 and further told her that she had caught hold the hands of Achal Kochar and accused Prince @ Rinku had pressed the neck of Achal Kochar and killed her. She also told her by saying that "tere bhi bachhe hain aur tu is ghar ki beti hai aur to ye baat apne sasural walo se kehkar is mamle to rafa dafa kara dai, isse tera bhi ghar bach jayega aur hamara bhi".
35. It is noted that accused Prince Kochar and PW13 Rachna Puri are brother and sister whereas other accused Meenu Kochar is the wife of other brother of PW13 i.e. she is his Bhabhi. The accused and PW13 both are related. It is noted that a person would only make a confession before a person in whom he could repose faith; a person, whom he could trust; to a friend, to a neighbour with whom he would have good relations. As in this case, they are related and well known to each other, thus it would be highly probable that accused Meenu Kochar would confessed before PW13 Rachna Puri. In the present FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.38/76 SC No.56414/2016 case, the extrajudicial confession was made by accused Meenu Kochar to PW13 Rachna Puri immediately after the death of Achal Kochar was pointed and came to know to the public persons; voluntarily and without any undue influence or pressure. Further, it has been corroborated by chain of cogent circumstances and prosecution evidence. It is further observed that no challenge is laid against the extra judicial confession made to PW13 Rachna Puri by accused Meenu Kochar and the same stands admitted fact in one way or the other since PW13 has not been crossexamined on the aspect of extra judicial confession made to her at all during her cross examination. Further the witness has testified and deposed regarding the strained relations between deceased and Prince Kochar in view of illicit relationship of the accused persons with each other. Further more, the extra judaical confession made by accused Meenu Kochar does not suffer from any material discrepancies and improbabilities. The submission of the State accordingly relying upon extra judicial confession appears to have substance.
LAST SEEN EVIDENCE:
36. The case of the prosecution is based on last seen evidence of PW8. "PW8 Raman Puri deposed that on 25/26.02.2011 at around 10.30 p.m., on the occasion of 10th marriage anniversary, his sister FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.39/76 SC No.56414/2016 Achal Kochar alongwith accused and her children had visited their house. They stayed for about 15/20 minutes at their house and thereafter, they both left our house leaving behind two children at our house. At that time also, he noticed that her sister Achal Kochar was under depression and stress despite the fact that it was her tenth marriage anniversary on that day. After about one hour of leaving Achal Kochar and accused of his house, both the children started weeping stating that they had not brought their clothes i.e. night clothes and complain. The age of those children were 05 years and 09 years at that time. When both the children were insisting for the same, his mother directed him to go to the house of accused Prince Kochar. Thereafter, he went to the house of accused and when he was on the stairs of the house of the accused as accused was residing in the second floor of the house, he heard the voice of Meenu Kochar (Bhabi) coming from the inside of room. She was saying that "Achal ka kaam tamam karna padega, ye manne wali nahi hai". Thereafter, he reached at the door of the house of the accused and knocked the same. Accused Prince opened the door at about 12/12:30 am (midnight), he shouted loudly and was in anger and he exhorted "eetni raat ko kya karne aaya hai". He told the accused that he had come to collect night clothes and complan for children. Accused had not permitted him to enter into his room. In the mean time, i.e. about 05 minutes, accused FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.40/76 SC No.56414/2016 handed over the clothes and complan for children to him on the door. He saw his sister Achal Kochar weeping inside the room of the house of the accused and his Bhabi Meenu Kochar was standing near his sister. When I asked the accused the reason behind the weeping of his sister, she immediately shut the door of the house and exhorted "jaa yahan se, apne kaam se kaam rakh" and he bolted the door from inside and thereafter, he came back to his house presuming that it is their routine matter."
The accused Prince Kochar in his statement under Section 313 Cr. P. C. admitted that on 25.02.2011 on the occasion of their marriage anniversary, they alongwith children visited the parental house of Achal in the night at about 10:30 pm and after staying there for about 10 to 15 minutes, they returned to the house after leaving the children at the parental house of Achal. The accused Prince Kochar also in his disclosure/confessional statement Ex.PW26/C admitted regarding his strained relations with his wife/deceased and the part of said statement is admissible in view of sections 25, 26 and 27 of Indian Evidence Act as the same is not the confession regarding his guilt. Moreover, both the accused persons did not lead their evidence in support of their contentions.
The testimony of PW8 Raman Puri regarding visiting to the house of accused to take the night clothes of the children and complan FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.41/76 SC No.56414/2016 for milk remained uncontroverted as during crossexamination nothing was asked in this regard. The witness further deposed that he was not permitted to enter into the room of the deceased where the quarrel was going on between the accused Prince Kochar and deceased and therefore, he left the house. The witness further deposed that other accused Meenu Kochar was also present in the room. The coaccused Meenu Kochar had also during her statement under Section 313 Cr.P.C. answered to the question as below:
Q:7 It is further in evidence against you that after co accused Prince Kochar and Achal had left, both the children started weeping on the ground that they had not brought their night clothes. They also demanded complan for milk. In view of the same, PW15 Usha Puri asked PW8 Raman Puri to visit your house and fetch the clothes and complan for the children. What do you have to say?
Ans. I do not know.
Q:8 It is further in evidence against you that when PW8 Raman Puri reached your house, he overheard your voice coming from the room saying "Achal ka kaam tamam karna padega, ye maane wali nahi hain". What do you have to say?
Ans. It is incorrect.FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.42/76 SC No.56414/2016
Q:9 It is further in evidence against you that when PW8 Raman Puri knocked at the door, coaccused Prince Kochar opened the same and started shouting at him. When PW8 Raman Puri told coaccused Prince Kochar that he had come to collect the clothes and complan for the children, he did not allow him to enter the room and handed over the said articles to him at the door. What do you have to say? Ans. It is incorrect.
Q:10 It is further in evidence against you that while standing at the door, PW8 Raman Puri saw that Achal was weeping inside the room and that you were standing at her side. When PW8 Raman Puri asked coaccused Prince Kochar about the reason for which Achal was weeping, you and the coaccused Prince Kochar shut the door by saying "ja yaha se, apne kaam se kaam rakh". What do you have to say? Ans. It is incorrect.
The answers to the questions asked during statements of the accused persons under Section 313 Cr. P. C. appears to be only general denial. The coaccused Meenu Kochar also categorically did not deny that she was not present in the room when PW8 visited to take the clothes and complan for the children, the quarrel was going on inside the room between the deceased and the accused persons etc.;FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.43/76 SC No.56414/2016
she was not present in the room etc. No evidence was lead by the accused to rebut the testimony of PW8. Mere no protest by PW8 Raman Puri to the said quarrel and not taking action by reporting the incident to the family does not make any difference as it was the auspicious day of marriage day of deceased and accused Prince Kochar and same may be considered as non interference in their personal matrimonial dispute.
37. From the evidence of PW8 Raman Puri and in view of the statement of the accused persons recorded under Section 313 Cr. P. C., it is proved that on the intervening night of 25/26.02.2011at about 12 12.30 midnight, both the accused persons were present in the room of Achal, quarreling in the house/room of the deceased and the deceased was last seen in their company. PW20 Smt. Shanti has firstly seen the dead body on 26.02.2011 at about 12:00 noon while she entered into the house and seen that Achal Kochar was lying down on her bed in her room and she was covered up with blanket. She raised alarm;
family member and neighbours gathered and the deceased was taken to hospital. The FIR was registered without any delay vide Ex.PW1/A and endorsement on rukka Ex.PW1/B. Therefore, theory of last seen would be applicable to the present case.
FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.44/76 SC No.56414/201638. Hon'ble Delhi High Court summarized the law on lastseen evidence in 'Arvind @ Chhotu v. State', CRL. A. 362/2001 decided on August 10, 2009, as under:
103. We may summarize the legal position as under:
(i) Lastseen is a specie of circumstantial evidence and the principles of law applicable to circumstantial evidence are fully applicable while deciding the guilt or otherwise of an accused where the lastseen theory has to be applied.
(ii) It is not necessary that in each and every case corroboration by further evidence is required.
(iii) The single circumstance of lastseen, if of a kind, where a rational mind is persuaded to reach an irresistible conclusion that either the accused should explain, how and in what circumstances that deceased suffered death, it would be permissible to sustain a conviction on the solitary circumstance of lastseen.
(iv) Proximity of time between the deceased being last seen in the company of the accused and the death of the deceased is important and if the time gap is so small that the possibility of a third person being the offender is reasonably ruled out, on the solitary circumstance of FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.45/76 SC No.56414/2016 lastseen, a conviction can be sustained.
(v) Proximity of place i.e. the place where the deceased and the accused were last seen alive with the place where the dead body of the deceased was found is an important circumstance and even where the proximity of time of the deceased being lastseen with the accused and the dead body being found is broken, depending upon the attendant circumstances, it would be permissible to sustain a conviction on said evidence.
(vi) Circumstances relating to the time and the place have to be kept in mind and play a very important role in evaluation of the weightage to be given to the circumstance of proximity of time and proximity of place while applying the lastseen theory.
(vii) The relationship of the accused and the deceased, the place where they were last seen together and the time when they were last seen together are also important circumstances to be kept in mind while applying the last seen theory. For example, the relationship is that of husband and wife and the place of crime is the matrimonial house and the time the husband and wife were last seen was the early hours of the night would FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.46/76 SC No.56414/2016 require said three factors to be kept in mind while applying the last seen theory. The above circumstances are illustrative and not exhaustive. At the foundation of the lastseen theory, principles of probability and cause and connection, where from a reasonable and a logical mind would unhesitatingly point the finger of guilt at the accused, whenever attracted, would make applicable the theory of lastseen evidence and standing alone would be sufficient to sustain a conviction."
39. In 'Krishnan @ Ramasamy and Ors. v. State of Tamil Nadu, (2014) 12 SCC 279, Hon'ble Supreme Court held that close proximity between the last seen evidence and death should be clearly established.
40. PW17 Dr. Shailendra Gaur examined Achal Kochar, who was brought at Bhagat Hospital, Janak Puri on 26.2.2011 at about 12.20 p.m. vide MLC ExPW17/A and after examination declared her dead at 12.25 p.m. PW19 Dr. Komal Singh, H.O.D., Forensic Medicine, DDU Hospital conducted postmortem on the dead body of the deceased on 27.02.2011 from 12.30 1.30 p.m. He given opinion that time since death of the deceased Achal was about 24 hours prior to postmortem. In his cross examination, he stated that time since FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.47/76 SC No.56414/2016 death calculated by parameter examined in the postmortem report may vary three hours on either side, thus the death may be occurred between 9.30 A.M. to 3.30 P.M.
41. As already discussed, it is proved beyond any cavil that on intervening night of 25262.2011at about 1212.30 midnight, the accused persons were present in the room with Achal and quarreling and the next morning, she was found dead as firstly seen by PW20. It is further proved that dead body of Achal was lying in the room and PW20 raised alarm in this respect on 26.02.2012 at about 12:00 pm. There is no dispute regarding the recovery of the dead body. There is proximity of time between the deceased Achal being lastseen in the company of the accused persons and she was found dead. There is proximity of place i.e. the place where the deceased Achal and the accused persons were lastseen alive with the place where the dead body of the deceased was found.
42. There was proximity of time between the deceased being last seen in the company of the accused persons and the death of the deceased. The principles spelled at Sl. No. (iv) and (v) summarized in 'Arvind @ Chhotu's' case (supra) would apply.
FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.48/76 SC No.56414/2016NO EXPLANATION OF THE CIRCUMSTANCES:
43. In the presence of proximity of time and proximity of place, the accused should explain, how and in what circumstances the deceased suffered death. The present case is regarding murder committed inside a house. It is, therefore, incumbent upon the accused persons to give a cogent explanation as to the circumstance leading to the death of Achal.
44. In the present case, the offence has taken place inside the privacy of the house. Therefore, the medical/scientific evidence corroborating with the testimonies of the prosecution witnesses shifts the burden of prove on to the accused persons to prove the facts and circumstances, which are within his special knowledge and conscience. Initially, the burden to establish the case would undoubtedly be rest upon the prosecution. In my view, the initial burden has been discharged by the prosecution on the basis of the evidence on record, which establishes the fact that the deceased was murdered by the accused persons in view of their illicit relationship to get rid of her. Accordingly, by the virtue of Section 106 of the Indian Evidence Act, the accused persons ought to have been explained the incriminating circumstances pointing against them.
FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.49/76 SC No.56414/201645. It is also a settled legal position 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 any shadow of reasonable doubt. It is only, when such a burden is discharged from the onus of the prosecution and eventually shifts on to the accused to prove any fact within his special knowledge, to establish that he/she is not guilty of the aforesaid alleged offence. The following Para, from the judgment of the Apex court in Sucha Singh v. State of Punjab, reported in AIR 2001 SC 1436 may be referred as under:
"We pointed out 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 would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to Offer any explanation which might drive the court to draw different inference."FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.50/76 SC No.56414/2016
46. Placing reliance on the judgment of the Apex Court in the case of Prithpal Singh vs. State of Punjab &Ors. reported in (2012) 1 SCC 10, the Apex Court in the following Para has held as under:
"... if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 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 persons 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."FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.51/76 SC No.56414/2016
47. This court deems it appropriate to rely upon Trimukh Maroti Kirkan vs State of Maharashtra reported at (2006) 10 SCC 681. The facts of this case are somewhat similar to the facts of the case at hand except the reason of murder being the illicit relationship. Both these cases relate to the death of a woman in the dwelling house of her husband. In the case of Trimukh Maroti Kirkan (Supra) the deceased Ms. Revata died in her matrimonial home; allegations were that her in laws and husband used to illtreat her and used to harass her and demanded Rs. 25,000/; police were informed that she was bitten by a snake and had died. The post mortem report, however, revealed that she died due to asphyxia as a result of compression of neck. The Supreme Court has held that when an offence takes place inside the privacy of the house and the assailants have ample opportunity to plan and commit the offence, it would be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused. Relevant paragraphs of the judgment read as under:
"12. 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 FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.52/76 SC No.56414/2016 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 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 Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC
271). 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 FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.53/76 SC No.56414/2016 of this provision and it reads:
(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him."
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.
15. In Ram Gulam Chaudhary & Ors. v. State of Bihar FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.54/76 SC No.56414/2016 (2001) 8 SCC 311, the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they have murdered the boy. It was further observed that 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 accused by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference.
16. In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.55/76 SC No.56414/2016 principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 (para 6); State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 (para 40); State of Maharashtra v. Suresh (2000) 1 SCC 471 (para
27); Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 (para 15) and Gulab Chand v. State of M.P. (1995) 3 SCC 574 (para 4)].
17. 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 they were seen together or the offence takes placed 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 FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.56/76 SC No.56414/2016 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. In Nika Ram v. State of Himachal Pradesh AIR 1972 SC 2077 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.57/76 SC No.56414/2016 U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband illtreated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.58/76 SC No.56414/2016 when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime."
48. In 'Sahadevan @ Sagadevan v. State represented by Inspector of Police, Chennai' (2003) 1 SCC 534, the prosecution established the fact that the deceased was seen in the company of the appellants from the morning of March 5, 1985 till at least 05.00 p.m., on that day when he was brought to his house, and thereafter his dead body was found in the morning of March 6, 1985. In the background of such facts the Court observed:
"Therefore, it has become obligatory on the appellants to satisfy the Court as to how, where and in what manner Vadivelu parted company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.59/76 SC No.56414/2016 person with whom he was last found has to explain the circumstances in which they parted company....."
70. In 'Suresh and Another v. State of Haryana (2015) 2 SCC 227, this Court observed: "9. ...... No doubt, the burden of proof is on the prosecution and Section 106 is not meant to relieve it of that duty but the said provision is attracted when it is impossible or it is proportionately difficult for the prosecution to establish facts which are strictly within the knowledge of the accused....."
71. In State of W.B. v. Mir Mohammad Omar and others (2000) 8 SCC 382, this Court, while interpreting the burden of extent of proof on prosecution, observed as under: "36. In this context we may profitably utilize the legal principle embodied in Section 106 of the Evidence Act which read as follows: "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
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 FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.60/76 SC No.56414/2016 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."
73. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, this Court held as under: "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 FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.61/76 SC No.56414/2016 case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
49. It is relevant to refer the ratio as laid down in the judgment of Hon'ble Supreme Court in Gajanan Dashrath Kharate vs. State of Maharashtra in Crl. Appeal No.2057/2010 decided on 26.02.2016. As held: "when an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 6 of Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house can not get away by simply keeping quiet and offering no explanation on the suppose premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer."
50. In 'State of Rajasthan v. Kashi Ram', AIR 2007 SC 144 , the Apex Court held as under: "..... It lays down the rule that when the accused FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.62/76 SC No.56414/2016 does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain".
51. In 'Sunil Clifford Daniel v. State of Punjab, (2012) 11 SCC 205 as under: "When the attention of the accused is drawn to such circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstance." See: Harivardan Babubhai Patel v. State of Gujarat 3 (2013) 7 SCC."
52. In Moinuddin v. State, Crl. A.1122/2010 decided on 04.09.2013 by Delhi High Court: "41. ..... It is settled law that if the accused gives incorrect or false answers during the course of his FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.63/76 SC No.56414/2016 statement under Section 313 of the Cr.P.C. the Court can draw adverse inference against him (See: 2012 AIR (SC) 2470 Munna Kumar Upathyaya v. State of Andhra Pradesh). The appellant must suffer on this count as well."
53. In 'Kailash v. State', Crl. A. No. 725/2012, decided on 01st December, 2015, by Delhi High Court: "19. ..... The false answers given by the appellant in his statement under Section 313 Cr.P.C., as noted above, provided a supporting link in the chain of circumstances, if there was any missing link for it to be required to be filled in. We may rather observe that the false answers in the case at hand reinforce the impression gained from the proved facts as to the appellant being the perpetrator."
54. If the accused furnishes no explanation or false explanation, it would enable the Court to draw an inference that the accused was the author of the crime. In Moinuddin v. State, Crl. A. 1122/2010 decided on 04.09.2013, Hon'ble Delhi High Court held as under:
FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.64/76 SC No.56414/2016"33. The theory of last seen come into play; this theory being that where the deceased is last seen alive with an accused and soon thereafter the deceased was found dead and there being little possibility of any other person accessing the deceased unless the accused explains the circumstance under which the deceased has died, the accused must own up to the guilt (AIR 2003 SC 3131 Mohibur Rahman Vs. State of Assam)".
55. In 'Ram Sagar @ Sagar', Crl. A. 649/2014 decided on 25.08.2015, Hon'ble Delhi High Court held as under:
"44. The "last seen" theory comes into play in a fact situation where the timegap between the point of time when the accused and the victim (deceased) were last seen alive together, in the company of each other, and the time when the victim suffered the homicidal death is so small that possibility of any person other than the accused being responsible for the same becomes impossible. The proximity in time of the two events is the key factor since a long gap gives rise to the possibility of other persons having come in. The FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.65/76 SC No.56414/2016 burden of proving that the accused and the deceased were last seen alive, in the company of each other, closely proximate to the probable time of death, rests squarely on the prosecution. Once these facts are proved, failure or absence of any explanation, by the accused, is a relevant fact. Thus, if the deceased had been last seen alive in his company, then the accused should satisfy the Court by offering an explanation as to how, where and when he had parted company. The explanation which the accused furnishes must appear to the Court to be probable and not a delusion. If he does give a plausible explanation, no adverse inference is drawn. Conversely, if he fails to offer an explanation, on the basis of facts within his special knowledge, the Court may legitimately consider such failure as an additional link completing the chain of circumstantial evidence proving his guilt. The permitted reasoning process enables the Court to draw an inference, in the light of preceding and succeeding circumstances, that the accused, who was last seen alive in the company of the deceased, had committed the acts leading to his homicidal death. Explanation FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.66/76 SC No.56414/2016 as to the circumstances can take various forms, e.g. facts put to witnesses in cross examination, facts stated in the statement u/s 313 Cr.P.C. or even facts emerging from the statements or the documents on record etc. [State vs. Mir Mohd. Omar 2000 VII A.D. (SC) 37; Sucha Singh vs. State of Punjab JT 2001 (4) SC 107; Ram Gulam Chaudhary and Ors. vs. State of Bihar JT (2001) 8 SCC 311; Sahadevem vs. State (2003) 1 SCC 534; State of U.P. vs. Satish (2005) 3 SCC 114]"
56. In Mohan Singh Vs. Prem Singh and Anr. reported in (2002) 10 SCC 236, the Hon'ble Supreme Court held that the statement made by the accused under Section 313 of the Code of Criminal Procedure can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 Code of Criminal Procedure cannot be made the sole basis of his conviction. In this connection, reference may also be made to Devender Kumar Singla v. Baldev Krishan Singla (2004) 9 SCC 15 and Bishnu Prasad Sinha and Anr. v. State of Assam (2007) 11 SCC 467 in which it was observed that the statement of the accused under Section 313 Code of Criminal Procedure for the admission of FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.67/76 SC No.56414/2016 his guilt or confession as such cannot be made the sole basis for finding the accused guilty, the reason being he is not making the statement on oath, but all the same the confession or admission of guilt can be taken as a piece of evidence since the same lends credence to the evidence led by the prosecution.
57. In Ashok Debbarma @ Achak Debbarma vs State of Tripura reported in (2014) 4 SCC 747, the Hon'ble Supreme Court observed that the admission of guilt under Section 313 cannot be brushed aside and held as under:
"21. We are of the view that, under Section 313 statement, if th accused admits that, from the evidence of various witnesses, four persons sustained severe bullet injuries by the firing by the accused and his associates, that admission of guilt in Section 313 statement cannot be brushed aside. This Court in State of Maharashtra v. Sukhdev Singh and Anr. (1992) 3 SCC 700 held that since no oath is administered to the accused, the statement made by the accused under Section 313 Code of Criminal Procedure will not be evidence stricto sensu and the accused, of course, shall not render himself liable to punishment merely on the basis of answers given FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.68/76 SC No.56414/2016 while he was being examined under Section 313 Code of Criminal Procedure. But, Sub section (4) says that the answers given by the accused in response to his examination under Section 313 Code of Criminal Procedure can be taken into consideration in such an inquiry or trial. This Court in Hate Singh Bhagat Singh (supra) held that the answers given by the accused under Section 313 examination can be used for proving his guilt as much as the evidence given by the prosecution witness. In Narain Singh v. State of Punjab (1963) 3 SCR 678, this Court held that when the accused confesses to the commission of the offence with which he is charged, the Court may rely upon the confession and proceed to convict him."
58. Keeping in view the law laid down above, it stands settled that when an incriminating circumstance is put to the accused persons and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.
59. The accused persons have not given any explanation as to FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.69/76 SC No.56414/2016 when and how they parted the company of the deceased Achal. According to the photographs and site plan Ex.PW10/A, there was no separate entry to the top floor where the deceased resided except through the main gate of the said building. It is reiterated that no other offence like theft or robbery has been committed or reported. As discussed above, the accused persons have not given any explanation as to how and when they parted with the company of the deceased Achal. Such nonexplanation is an additional link in the chain of circumstances. The ratio of the judgments referred above are squarely applicable in the facts of the case.
60. The defence did not doubt or question any procedure adopted during investigation or the testimony of the witnesses examined in this respect. The seizure of the dead body, postmortem report of the deceased or other medical/forensic report are not disputed at all. Moreover, In the case of Sunil Kundu v. State of Jharkhand, (2013) 4 SCC 422, it was held:
"29.....It is true that acquitting the accused merely on the ground of lapses or irregularities in the investigation of a case would amount to putting premium on the depreciable conduct of an incompetent investigating agency at the cost of the victims which FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.70/76 SC No.56414/2016 may lead to encouraging perpetrators of crimes. This Court has laid down that the lapses or irregularities in the investigation could be ignored subject to a rider. They can be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and the evidence is of sterling quality. If the lapses or irregularities do not go to the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored....."
61. In Hema v. State, (2013) 10 SCC 192, Hon'ble Apex Court held as under:
"18. It is clear that merely because of some defect in the investigation, lapse on the part of the investigating officer, it cannot be a ground for acquittal. Further, even if there had been negligence on the part of the investigating agency or omissions, etc. it is the obligation on the part of the Court to scrutinise the prosecution evidence dehors such lapses to find out whether the said evidence is reliable or not and whether such lapses affect the object of finding out the truth." Defects / lapses in the investigation."FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.71/76 SC No.56414/2016
62. It is vehemently argued that PWs 6, 8, 9, 13 and 15 examined by the prosecution are the relatives of the deceased and therefore, being interested witnesses, their testimony can not be relied. It is further pointed out there is inherent contractions in their statements made to the police as well as in the statements recorded before the court. In the present case nothing has been brought on record to prove that the evidence of PW6, PW8, PW9, PW13 and PW15 cannot be believed and relied upon or they have falsely implicated the accused persons due to some personal vengeance or have been implicated in the present case at the instance of the prosecution. Therefore, aforesaid testimonies cannot be rejected on the mere ground of their relationship because the relationship by itself is not a sufficient ground to discard the evidence of the witnesses and specify it as inappropriate for credence and hence the argument of the counsel for the appellant with regard to interested witness and contradictions in the statements of prosecution witnesses hold no ground.
As far as the stand taken by learned counsel for the accused persons that PW6, PW8, PW9, PW13 and PW15 are interested witnesses and closely related to each other, a survey of the judicial pronouncements of the Hon'ble Apex Court on this point leads to the FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.72/76 SC No.56414/2016 inescapable conclusion that the evidence of a closely related witnesses is required to be carefully scrutinized and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (Ref: Anil Rai Vs. State of Bihar, (2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206; Dahari & Ors. Vs. State of U. P., (2012) 10 SCC 256; Raju@Balachandran & Ors. Vs. State of Tamil Nadu, (2012) 12 SCC 701; Ganga bhavani Vs. Rayapati Venkat Reddy & Ors., (2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52).
63. Further the Court, after going through the entire evidence must form an opinion about the credibility of the witnesses and otherwise also, in all criminal cases, normal discrepancies are bound to occur in the depositions of the witnesses due to normal errors of observation, namely, error of memory due to lapse of time or due to mental disposition such as shock and horror at the time of the incident. In case of Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and Anr., reported at (2013) 12 SCC 796, the Apex Court held as under:
FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.73/76 SC No.56414/2016"28. As is evincible, the High Court has also taken note of certain omissions and discrepancies treating them to be material omissions and irreconcilable discrepancies. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defense can take advantage of such inconsistencies. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission (See Leela Ram vs. State of Haryana and another, Rammi alias Rameshwar v. State of M.P. and Shyamal Ghosh v. State of West Bengal)."
64. In view of the factual background and circumstances as FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.74/76 SC No.56414/2016 discussed in this case against the accused persons regarding murder of Achal Kochar; motive of the accused persons to do away with the deceased in view of their illicit relationship; evidence of the prosecution witnesses including extra judicial confession made by accused Meenu Kochar to PW13 Rachna Puri and last seen evidence by PW8 Raman Puri coupled with medical evidence on record as well as the opinion of PW19 Dr. Komal Singh vide postmortem report Ex.PW19/A and Ex.PW19/B that ultimate cause of death was asphyxia subsequent to smothering and throttling together and asphyxia was sufficient to cause death in ordinary course of nature; the same cumulatively and unerringly brings home the guilt of the accused persons beyond reasonable doubt and are completely inconsistent with the plea of innocence.
65. In view of the above discussion and appraisal/analysis of the evidence on record, this court has no hesitation to hold that the prosecution has successfully established all the circumstances appearing in the evidence against the accused persons by clear, cogent and reliable evidence and the chain of established circumstances is complete and has no gaps whatsoever and the same conclusively establishes that the accused persons alone have committed the crime of murdering the deceased on fateful day in the manner suggested by FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.75/76 SC No.56414/2016 the prosecution. All the established circumstances are consistent only with the hypothesis that it was the accused persons alone who committed the crime and the circumstances are inconsistent with any hypothesis other than their guilt.
CONCLUSION:
66. In the light of above discussion, both the accused persons Prince Kochar and Meenu Kochar are held guilty for the commission of offence punishable under Section 302/34 IPC.
67. Let they be heard on the point of sentence on 07.06.2019.
Digitally signed by Gorakh Nath Gorakh Nath Pandey Pandey Date: 2019.06.03 16:01:27 +0530 Announced in the open court (Gorakh Nath Pandey) on 30.05.2019 Addl. Sessions JudgeFTC, (West) Tis Hazari Courts, Delhi. FIR No.18/2011 State v. Prince Kochar & Meenu Kochar Page No.76/76