Jammu & Kashmir High Court
Romesh Thakur vs State Of J&K And Anr on 30 December, 2022
S. No.
HIGH COURT OF JAMMU AND KASHMIR & LADAKH
AT JAMMU
CRA No.21/2010
c/w
CONF No. 9/2010
Reserved on: 10.11.2022
Pronounced on: 30.12.2022
Romesh Thakur ...Appellant(s)
Through :- Mr. S. C. Sharma, Advocate
v/s
State of J&K and anr. .....Respondent (s)
Through :- Mr. Ranjeet Singh Jamwal, AAG
Coram: HON‟BLE THE CHIEF JUSTICE (ACTING)
HON‟BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
Rajesh Sekhri-J
1. The present case relates to an incident, in which the life of a young man, the only son of his parents and an engineer by profession, has been taken away at the prime of his youth, by none other than his wife and her paramour, the appellant herein. By virtue of this judgment, we propose to give quietus to the present appeal hanging fire for last more than 12 years.
2. This conviction appeal has been directed against the judgment and order of sentence dated 17.07.2010, passed by Learned Sessions Judge, Reasi, (hereinafter to be referred as the trial Court) in, File No. 10/challan, titled State v. Romesh Thakur and anr., vide which appellant has been convicted and sentenced 2 CRA No.21/2010 to under imprisonment for life for the commission of offence under Section 302 of Ranbir Penal Code, 1989 (RPC, for short).
3. Shorn of verbosity, the prosecution story is that on 04.12.2005, one Raj Kumar Adhlakha lodged a written report at Police Station, Katra alleging inter alia that on 03.12.2005 at about 10 a.m. three persons including two males and a female hired Room No. 104 of Prem International Hotel situate at Jammu Road Katra. An entry was made in the name of Hira Singh by one of the male members. At about 6.00 p.m. one of the male members and the female checked out and went towards bus stand, Katra. That day i.e. on 04.12.2005, at about 12:15 p.m. dead body of the third person was found lying behind the mattressess in the Verandah of the first floor of the Hotel. Since death of the deceased had taken place in suspicious circumstances, inquest proceedings under Section 174 of the Code of Criminal Procedure, 1989 (for short, Cr.P.C.) were initiated by ASI-Inder Singh, who visited the hotel and completed legal formalities. Entry Register of the hotel and duplicate bills pertaining to boarding and lodging and hotel charges were also seized. Since the dead body could not be identified, the same after the autopsy at Sub-District Hospital, Katra, was handed over to Incharge Shamshan Ghaat for last rites. It revealed from the postmortem report that coagulated bluish spots were found on the neck of the deceased. As per statements of the witnesses recorded under Section 175 Cr.P.C. and the postmortem findings, it turned out to be a case of murder. Accordingly, FIR No. 255 of 2005 for offence under Section 302 of RPC came to be registered and investigation was assigned to ASI-Inder Singh.
4. The investigating Officer, during investigation, seized the relevant documents. The dead body was found to be of one Hira Lal, aged about 23 to 24 3 CRA No.21/2010 years, later identified by its father, PW-Sohan Pal Singh. During investigation, appellant-Romesh Thakur and wife of the deceased, namely, Rachna (hereinafter referred to as the co-accused) were arrested and their identification parade was conducted in the presence of Tehsildar, Executive Magistrate 1st Class, Katra.
5. It surfaced that appellant along with deceased and his wife, co-accused Rachna, were brought by a driver PW-Rajesh Sodhi in Maruti Van No. 8419/JK02N from Railway Station, Jammu to Katra on 03.12.2005 and dropped them at Prem International Hotel, Katra. The said driver PW-Rajesh Sodhi identified the appellant and co-accused-Rachna in the identification parade. The appellant, during investigation, also made a disclosure statement that a polythene bag, containing liquor „8 PM‟ and a medicine strip of Alprax, out of which five tablets had been used and remaining five were left, was lying on the first floor of the hotel in front of Room No. 104. Consequently, the empty quarter of liquor „8 PM‟ and the said Alprax strip were recovered at the instance of the appellant. Same were seized and sealed on the spot. The specimen finger prints and hand writing of the appellant were obtained in the presence of Executive Magistrate 1 st Class, Katra. The sealed packets of blanket, blood samples of the deceased and the Alprax strip were re-sealed in the presence of Executive Magistrate 1st Class, Katra and all these packs along with entry Register of the hotel were sent by SDPO, Katra to Forensic Science Laboratory (for short, FSL) for chemical examination. The reports of the finger print expert, hand writing expert and FSL report of Alprax were obtained from FSL Jammu. The site plan of the place of occurrence was also obtained.
6. It came to surface, during investigation, that co-accused-Rachna, wife of the deceased along with her parents was residing at B-9, Poshta Road, Pachmi 4 CRA No.21/2010 Karole Nagar, Dehli, 94 and the appellant, who was already married, was also residing in the same sector. He had developed illicit relations with the co-accused for three years. Thereafter, parents of the appellant sold their house and shifted to Gaziabad, U.P. Subsequently, parents of co-accused-Rachna arranged her marriage with deceased Hira Lal. The appellant was unhappy with this engagement. The appellant and co-accused hatched a conspiracy to eliminate deceased Hira Lal.
7. The marriage of the deceased with co-accused-Rachna was solemnized on 27.11.2005 as per Hindu rites and ceremonies. On 02.12.2005, she made her husband to visit Shri Mata Vaishno Devi Shrine, Katra and when they reached Railway Station, Delhi, they were joined by the appellant. As per the plan, appellant was already carrying the Alprax strip and a quarter of English liquor „8 PM‟ in his bag. On 03.12.2005 they reached Jammu, Railway Station. They hired Maruti Van No. 8419/JK02N, being driven by PW Rajesh Sodhi and came to Prem International Hotel, Katra, where they hired Room No. 104 for a short stay. The appellant made entry in the hotel Register in the name of deceased Hira Lal vide Entry No. 1115. The trio entered the said room. The appellant ordered three cups of tea and when deceased Hira Lal went to bathroom, the appellant mixed the Alprax tablets in the cup of tea reserved for the deceased. When he returned, all three of them had tea. After sometime the deceased started feeling sleepy and had headache. The appellant also tried to administer liquor to the deceased on the pretext that it was a medicine to ensure that he became unconscious. However, after having a sip, the deceased threw it away saying he does not drink. Thereafter, the deceased fell asleep in the room. After having snacks, both appellant and co-accused came out of the hotel to enquire for the return journey from Katra. After some time, they came back to the Hotel Room and in 5 CRA No.21/2010 furtherance of common criminal intention, closed the door of the room from inside and turned on the T.V. at high volume. While the deceased, who was in deep slumber under the influence of the sleeping pills had put on blanket on himself, the appellant caught hold of his neck and strangulated him and his wife co-accused-Rachna caught hold of legs of her husband, till blood oozed out from his mouth. After killing the deceased, the appellant and the co-accused, concealed his dead body behind a curtain in the old mattresses lying in the gallery. So, offence under Section 201 RPC was added. Thereafter, the appellant and the co-accused fled to Delhi.
8. Accordingly, a final report against the appellant and co-accused Rachna for the alleged commission of offences under Sections 302/201/34 RPC was presented in the Court of Learned Judicial Magistrate 1st Class (JMIC), Katra wherefrom it was committed to the trial Court. The accused were charge sheeted for offences under Sections 302/34 RPC, whereby they pleaded not guilty and claimed trial prompting the trial Court to ask for the prosecution evidence in support of its contention.
9. Before a closer look at the grounds of challenge urged in the memo of appeal, it shall be apt to give an overview of the prosecution evidence.
10. PW Dr. K. C. Dogra, BMO, Katra, head of the medical board, conducted autopsy on the dead body of the deceased and tendered report dated 08.12.2005. He has stated that deceased had died due to Cardio respiratory arrest, as a result of asphyxia due to application of blunt force on anterior aspect of neck. He has admitted the postmortem report EXT-P22.
11. PW Hari Rattan Singh is an acquaintance of the co-accused, the deceased, father of the deceased PW-Sohan Pal Singh and father of the co-accused-Rachna, 6 CRA No.21/2010 namely, Rajinder. He has stated that Hira Lal was son of Sohan Pal Singh. Co- accused-Rachna was married to the deceased on 27.11.2005 as per Hindu rites and ceremonies. On 04.12.2005, they received a telephonic call of Rajinder at 5:00 p.m. that co-accused Rachna along with deceased Hira Lal had gone to Shri Mata Vaishno Devi on 02.12.2005. While Rachna had returned home, Hira Lal was not with her. They went to the house of Rajinder, where relatives had assembled. Thereafter, they went to the House of Sohan Pal Singh in search of Hira Lal, but he could not be found. They asked Rachna about the deceased, who told them that on 03.12.2005 she and deceased Hira Lal had taken food at Pathankote as she had headache, Hira Lal gave her two tablets. She fell asleep and when vehicle reached Railway Station, Delhi she was awakened by the passengers and she found herself alone. She enquired about her husband and later returned to her parental home. Thereafter, co-accused-Rachna was interrogated by Anil Kumar, Neelam Devi, Sohan Pal Singh, her father Rajinder Singh and her mother Usha Devi and when pressurized Rachna disclosed that they had gone to Prem International Hotel, Katra. They were three in number. After naming her husband Hira Lal and herself, she became silent. When again pressurized, she disclosed the name of appellant Romesh Thakur and confessed that both of them had killed Hira Lal. Thereafter, he along with Sohan Pal Singh and Vinod Kumar came to Katra. They went to the Police Station and identified clothes and photographs of the deceased and put their signatures on the seizure memos EXPW-SP. They were told by the neighbourers of the appellant that appellant had illicit relations with the co-accused. In cross examination, he has stated that co-accused Rachna Devi is his sister in relations. Rachna had stated that accused- Romesh Thakur also stayed in the same hotel.
7 CRA No.21/2010
12. PW-Ravi Kumar, an employee and PW Ravi Sharma, Waiter of Prem International Hotel have turned hostile.
13. PW-Kuldeep Singh Constable, body guard of SHO P/S Katra, is witness to the disclosure statement of the appellant. He has stated that on 21.12.2005, the appellant made disclosure in his presence in Police Station, Katra that one pack containing some liquor and a strip of Alprax-05 tablets with five tablets, was lying in the gallery of second storey of the Hotel and he could recover the same. Subsequently, the appellant himself brought out and recovered the aforesaid articles in consequence of disclosure made by him from a black polythene bag lying in the gallery. There was a quarter and tablets in the said bag. He has admitted the disclosure statement EXPW-KS and the recovery memo EXPW- KS-1. It was sealed and marked as C & D. On cross examination, he has stated that appellant made the disclosure statement on 21.12.2005 in the room of the SHO. The seizure memo was prepared in the Hotel.
14. PW-Dr. Anju Bala, CHC Katra is member of the medical board who conducted postmortem on 08.12.2005 and tendered her opinion. She has stated that postmortem was conducted by her in the presence of two doctors. Certificate was signed by her and Doctors K.C. Dogra and Dimple Gupta. She has admitted the postmortem certificate EXPWA, issued prior to the report of FSL. She has also admitted the second certificate EXPWA/1 issued after receiving the report of FSL, signed by her and other members of the Board including Dr. K.C. Dogra and Dr. Dimple Gupta. She has also admitted the report EXPW A/3. On cross examination, she has stated that Board of Doctors was constituted by the BMO. Alprazolam was detected in the postmortem. It is a sedative and if taken in 8 CRA No.21/2010 excess, can cause death. Duration of death was few days at the time of conducting postmortem.
15. PW-Dr. Dimple Gupta, CHC, Katra, is also member of the medical Board who conducted post mortem of a male on 08.12.2005 and stated that after the postmortem, opinion was given by her and rest of the members of the Board including Dr. Anju Bala and Dr. K.C. Dogra. She has denied that she signed the certificate EXPWA before receiving opinion from FSL. She has also admitted certificate EXPWA/1 and stated that opinion on such certificate was given after receiving report from FSL. She has admitted the certificate with respect to unknown person‟s body exhibited as EXPW-D. On cross examination, she has stated that certificate was written by Dr. Anju in their presence after receiving report from FSL and first certificate was issued before receiving report from the FSL. After the postmortem, opinion was given on the certificate that "Alprazone Tablet" salt was detected from the stomach of the deceased. Alprazone taken in large quantity can cause death.
16. PW Raj Kumar has stated that on 04.12.2005, he came to Prem International Hotel, Katra. He was told by Kuldeep Kumar, Receptionist of the Hotel that two males and a female had hired a room on the previous day and dead body of one of the males was lying behind the mattresses in front of Room No. 104 on the second storey of the hotel. He lodged a report in the Police Station. He has admitted the report EXPW-RK and identified his signatures. He has also admitted the seizure of a pair of shoes, a blanket and seizure of dead body in his presence. He went to the Tehsil office along with Kuldeep Kumar where identification parade of the accused was conducted. He had seen the accused thrice among 4/5 persons in the presence of Magistrate. On cross examination, he 9 CRA No.21/2010 has stated that he was told about the dead body by Kuldeep Raj. He immediately went to the Police Station and lodged the complaint. He had seen accused persons for the first time in the Prem International Hotel when they were brought after the arrest and he had not seen them earlier.
17. PW Bhushan Kumar has stated that on 03.12.2005 Room No. 104 of Prem International Hotel, Katra was hired and it was vacated in the evening. He cleaned the room and handed over keys on the counter. Next day, he went to the second floor and saw a pair of shoes, besides, a trunk and also spotted the feet of a dead body. He informed Kuldeep Kumar and they lodged a report with the Police. Police came to the spot and shifted the dead body for postmortem. On 09.12.2005 police along with accused came to the hotel and told them that they were accused. The identification parade of accused was conducted and he identified the accused. He was declared hostile and on cross examination by the prosecution, he has stated that he had seen the dead body in the gallery. He has admitted that identification parade was conducted at Katra, where 5/6 ladies and gents were present. He identified the accused. He had not seen the accused in the Hotel. He had heard that Room No. 104 was hired.
18. PW-Baldev Ram Head Constable is witness to the Supurdnama EXPWBR, seizure memo of clothes EXPW BR-1 of the deceased and Supurdnama of seal EXPW BR-2.
19. PW-Balbir Singh is the photographer and has admitted 07 photographs of the deceased marked A to G.
20. PW-Vijay Kumar, Sweeper of Prem International Hotel, Katra has stated that a dead body was found lying among the mattresses in the gallery of the hotel. He had heard that a murder had taken place in Room No.104. There was 10 CRA No.21/2010 one more person with the accused persons. On being declared hostile, he has stated in cross examination by the prosecution that he had identified the accused before the Magistrate. Besides accused, there were 4/5 persons. He has identified photographs of the dead body. On cross examination by the defence, he has stated that he went to his house on 03.12.2005 from the hotel at 5:00 p.m. and saw the dead body on 04.12.2005. He had identified accused persons amongst many persons.
21. PWs Mohan Lal and Joginder are witnesses to the receipt of the dead body.
22. PW Kuldeep Raj, as per the prosecution case, was Receptionist of Prem International Hotel at the relevant time. However, this witness has completely turned hostile. He has stated that he was Receptionist of Amar Guest House, Katra and not Prem International Hotel, Katra. He has denied all the seizures memos, disclosure memo of the appellant and recovery memo, stated to have been executed in his presence.
23. PW Sohan Pal Singh has stated that his son Hira Lal was murdered by his daughter-in-law, co-accused Rachna and the appellant. The appellant was neighbourer of his daughter in law with whom she had illicit relations. He was told by the Police that his son had been murdered by accused persons on 03.12.2005 in Prem International Hotel, Katra. His son was married with co- accused-Rachna six days before the occurrence on 27.11.2005. The couple decided to visit Shri Mata Vaishno Devi and he made them board a Rikshaw for Jammu. On 04.12.2005, father of co-accused Rachna came to his house, along with a couple of persons and told him that his daughter had come back, but his son was not with her. Co-accused-Rachna had gone to her parental home and did not come to him. He along with his relatives, Rajinder Kumar, Ravi Kumar, Hari 11 CRA No.21/2010 Rattan and Vinod Kumar went to Katra, where they came to know that a dead body had been traced. They went to Katra, Police Station and identified photographs EXPW-SP of the dead body of Hira Lal and his clothes. The Police had cremated the dead body as unclaimed and he was handed over the sacred ash of the dead body. He has admitted the seizure memo with respect to the same. His son was an Engineer by profession. He was told by the Police that deceased was administered sedative tablets and was strangulated while co-accused Rachna sat on his feet. He believes that appellant and co-accused Rachna had illicit relations because they jointly killed his son. Appellant Romesh Thakur had done the reservation of all the three tickets. On cross examination, he has stated that marriage of his son with co-accused Rachna was arranged by his son-in-law, who told him that girl belongs to a good family. Nobody told him about her illicit relations.
24. PW Vinod Kumar is cousin of the deceased. He has stated that he was telephonically informed by Mangay Ram that deceased Hira Lal and co-accused Rachna had gone to Shri Mata Vaishno Devi. While Rachna returned home, Hira Lal had not come back. He went to his uncle, Sohan Pal Singh, who told him the whole story, which, Rajinder Kumar, father of co-accused Rachna had narrated to him that his daughter, Rachna had returned and while they were coming back by train via Pathankote, they ate food in the train. She had headache, Hira Lal gave her a tablet. She fell asleep and when she came to her senses at New Delhi Railway Station, Hira Lal was found missing. She enquired from the passengers but deceased was not found. When Rachna narrated this story to her family, he along with Sohan Pal Singh, Hari Rattan and others searched for Hira Lal, but he could not be found anywhere. Later, they reached Katra as the duo had gone to Katra for Darshan. They came to know that a dead body had been traced at Prem 12 CRA No.21/2010 International Hotel Katra. They went to Katra, Police Station where his uncle identified the photographs and clothes of the deceased. Thereafter, they came to know about illicit relations of co-accused Rachna and appellant Romesh Thakur for about 5/6 years. Accused had hatched a conspiracy from the very inception to kill Hira Lal. Accused Rachna and Romesh Thakur had booked three tickets. They came to Prem International Hotel, Katra where entries of all three had been made. The accused persons strangulated the deceased in the Hotel. He has admitted the seizure memo EXPW-SP of the clothes of the deceased and also identified photographs of the deceased. The Police gave them the sacred ash of the deceased for immersion in river Ganges and they returned home. On cross examination, he has stated that they were told that girl belonged to a good family, but they did not know about illicit relations of accused persons before marriage and he came to know about their illicit relations from the neighbourers of accused and from the newspaper and magazine.
25. PW-Anil Kumar is brother-in-law of the deceased and has stated that on 27.11.2005, co-accused Rachna was married to his brother-in-law, deceased Hira Lal. On 02.12.2005, they set out for Darshan of Shri Mata Vaishno Devi at Katra. On 04.12.2005, accused-Rachna returned home alone and she told her parents that her husband had left her. When they went to her house, she was weeping and told that they boarded together from Jammu, had food at Pathankote and since she had headache due to exertion, Hira Lal gave her two tablets. She went into deep slumber and does not know what happened thereafter. When she reached New Delhi and passengers started alighting, she woke up and found her husband missing. Subsequently they came to know that co-accused Rachna had illicit relations with the appellant. They hatched a conspiracy and reserved the tickets for Delhi to Jammu. They stayed at Prem International Hotel, Katra where 13 CRA No.21/2010 accused persons administered sedatives to the deceased, who fell unconscious and they killed him in furtherance of their plan. The deceased was his only brother-in-law and only son of his old parents, who have nobody now to look after them. They went to Katra and identified the photographs and clothes of the deceased. On cross examination, he has stated that he had arranged marriage of Hira Lal with co-accused Rachna, because family of Rachna appeared to be simple but he did not know that she had illicit relations with accused Romesh Thakur. They came to know about illicit relations of accused persons from newspaper and magazine.
26. PW Mohd. Aslam Patwari is witness to the Shajra Khasra.
27. PW Sanjay Badyal, Tehsildar is the Executive Magistrate in whose presense test identification parade of accused was conducted. He has admitted the test identification report EXPW-SB. He is also witness to the finger prints of co- accused Rachna, EXPW-SB2.
28. PW Ashok Kumar, Constable is witness to the blood stained clothes of the deceased and seizure memos EXPW-BR, EXPW-BR1 and EXPW-BR2.
29. PW Inder Singh-ASI, is witness to the inquest proceedings. He has stated that he conducted the inquest proceedings of case FIR No. 255 of 2005 in terms of Section 174 Cr.P.C. On 04.12.2005, they received an information that a dead body was lying in Prem International Hotel, Katra. He along with SHO and Police Personnel went to the spot. They found a dead body lying in the Gallery in front of Room No. 104. He prepared the site plan, seizure memo of the dead body, seized a pair of shoes and a blanket and shifted the unidentified dead body for postmortem. The dead body was kept in the mortuary of the Hospital. He recorded statements of hotel employees under Section 175 Cr.P.C. The 14 CRA No.21/2010 postmortem of the deceased was conducted on 08.12.2005. He seized and sealed blood of the dead body during postmortem. Thereafter dead body was cremated. On 09.12.2005, the postmortem report was obtained and as per the report, the deceased was found to have been killed by strangulation. Accordingly, a case FIR No. 255 of 2005 for offence under Section 302 RPC was registered. He has identified the documents with respect to seizures, investigation and search memo. He seized the Register along with Bill No. 9352936 dated 03.12.2005, regarding entries of Prem International Hotel, Katra, at S. No. 1115 dated 03.12.2005. He has admitted the Farad Surat-e-Hal, injury form for postmortem of the deceased dated 08.12.20005, seizure memo of the blood, seizure memo of the clothes, supurdnama of the seal dead body of the deceased respectively exhibited as EXPWS1, EXPSWSII, EXPWKR, EXPWKR1 & EXPWKR2. He has also identified the signatures on memo of Supurdnama and identification memo. On cross examination, he has stated that when he went to the Hotel, hotel employees including Kuldeep Kumar, Ravi Kumar, Bhushan Kumar and Vijay Kumar were present.
30. PW S.S. Sambyal, Inspector has stated that on 04.12.2005 at about 12:30 p.m. Raj Kumar lodged a written report in Police Station, Katra that on 03.12.2005 two males and a female hired Room No. 104 of Prem International Hotel, Katra. At about 6:00 p.m. a male and female checked-out and dead body of the third person was lying in the gallery of the hotel near old mattresses. Since death had taken place under mysterious circumstances, the inquest proceedings were initiated and assigned to ASI-Inder Singh. He along with ASI and Police personnels went to the spot. The ASI took photographs, prepared the site plan and recorded statement of witnesses under Section 175 Cr.P.C. The dead body was kept for postmortem and identification. Case FIR No. 255 of 2005 under 15 CRA No.21/2010 Section 302 RPC was registered and investigation started. On 08.12.2005, they went to Delhi, and accused Rachna Devi and Romesh Thakur were brought to Katra on 10.12.2005. They were identified by Sohan Pal Singh and others. The identification parade was conducted by Naib Tehsildar, Katra. A quarter of „8 PM‟ whisky and Alprax tablets were seized from the spot. Entries made in the handwriting of Romesh Thakur were also seized. Alprax tablets were sent to FSL and result was obtained during investigation. As per the investigation, offences under Sections 302/201/34 RPC were established against accused and therefore, challan was produced in the Court. He has admitted the written report EXPWRK, search memo of accused Romesh Thakur EXPWSS, arrest memos of accused EXPWSS1 & EXPWSS3, memo of disclosure of accused-Romesh Thakur EXPWKS, the recovery memo of accused Romesh Thakur EXPWKS1 and recovery memo of the place of recovery EXPWSS4. On cross examination, he has stated that three persons including co-accused Rachna and her mother-in-law were present at the Delhi Railway Station. He associated parents of Rachna for enquiry from her. During enquiry, she stated that she felt headache in Pathankote, her husband gave her two tablets, due to which, she fell asleep. She found herself alone at the Railway Station. She further stated that appellant Romesh Thakur was not accompanying them. He suspected that she was not telling the truth. But accused Romesh Thakur admitted that they were moving together in Delhi. Thereafter, he brought them for identification. Accused were identified by PWs Raj Kumar (complainant), Ravi Kumar, Vijay Kumar, Ravi Sharma, Kuldeep Kumar and driver Rajesh Sodhi on 12.02.2005 and 22.02.2005.
31. PW Rakesh Hangloo, Incharge Scientific Officer (Documents) FSL, Jammu has stated that some documents pertaining to case FIR No. 255 of 2005 under Sections 302/34 RPC of Police Station, Katra were received in FSL Jammu, he 16 CRA No.21/2010 examined the documents including the specimen writings and questioned writings of accused-Romesh Thakur. He has admitted his report No. 51/FSL dated 17.01.2006 EXTP25.
32. PW Shiban Lal Bhat, Scientific expert Finger Prints, FSL, Jammu has stated that on 23.12.2005 one sealed packet with 20 intact seals and specimen finger print, search slip of Romesh Thakur was received in FSL Jammu in case No. FIR No. 255 of 2005, which contained one glass bottle in a plastic Jar labeled as 8 PM, rear plant blend of Indian Whisky and Scotch alleged to bear finger print impression on it. The bottle contained about 60 ml of straw colored liquid. On examination of the contents and the specimen finger print, it was found that the questioned finger print impression on the bottle (Q), later developed and marked as (Q1), was identical with specimen right thumb impression marked as S1 in the recorded finger print search slip of Romesh Thakur and both were of the same person. He has admitted his report No. 77/FSL dated 23.1.2006 under his seal and signatures, exhibited as EXTP-P27. On cross examination he has stated that there was finger print impression on the bottle other than that of Romesh Thakur. He further stated that there were other finger impression on the said bottle other than that of Romesh Thakur and his later statement was correct.
33. PW Rohit Koul, Scientific Officer, FSL, Jammu has stated that one seal packet bearing 12 intact seals was received in FSL Jammu in case FIR No. 255 of 2005 of Police Station, Katra. The packet was opened and it contained one small plastic container containing a blister packet labeled as Alprax-0.5 besides other details. There were five tablets in the said packet marked as K-26/2006 to K- 30/2006. They were subjected to various tests and all these exhibits were identified as Alprazolam which is a tranquillizer and a hypnotic drug. He has 17 CRA No.21/2010 admitted his report EXPT-P26/1. On 28.01.2006, another unsealed packet was received in FSL, Jammu in the same FIR, containing one plastic jar in which there was one glass bottle labeled 8 PM whisky besides other details. It was a bottle of 180 ml and was found to contain some Orange coloured liquid, measuring 35 ml. On examination, it was found to be ethyl alcohol with a concentration of 28% V/V. Report was signed by him and counter-signed by S.K. Razdan. He has admitted the report EXT-P26/2.
34. PW Rajesh Sodhi has stated that on 03.12.2005, he had brought the accused persons along with one more person in his taxi bearing Registration No. 8419/JK02N from Railway Station, Jammu to Katra and dropped them at Prem Internation Hotel, Katra. On cross examination, he has stated that he had visited Katra about ten times. He does not know the passengers, he brought in the month of December, 2005. He had seen the accused on the said date and thereafter in the Katra Court and now in the Court (trial Court). He had seen them in the Katra Court after one month, he dropped them at Katra.
35. This is the crux of prosecution evidence.
36. Both appellant and co-accused have denied the incriminating evidence against them in their respective statements under Section 342 Cr.P.C and refused to enter the defence.
37. Learned trial Court on appreciation of the prosecution evidence has concluded that prosecution has succeeded to establish a complete and un-broken chain of circumstances which leads to the only conclusion that it was the appellant, who with the help of co-accused, wife of the deceased, had killed the deceased. Accordingly, appellant has been convicted as aforestated. However, learned trial Court has acquitted the co-accused i.e. wife of deceased on the 18 CRA No.21/2010 ground that evidence regarding her complicity in the commission of crime was not convincing and beyond shadow of doubt.
38. Appellant has assailed the impugned judgment of conviction and order of sentence on the predominant premise that prosecution has failed to prove the alleged entry made in his hand in the hotel Register as also his identification parade. According to the appellant, the prosecution case suffers from material irregularities and improvements and most of the material prosecution witnesses have turned hostile.
It is further submission of the appellant that prosecution has failed to prove the alleged motive behind the occurrence i.e. illicit relations between him and wife of the deceased and since the co-accused has been acquitted by learned trial court, therefore, the impugned judgment of conviction against him is not sustainable in the eyes of law.
39. Heard arguments and perused the file.
40. While learned counsel for the appellant has reiterated the grounds urged in the memo of appeal, Mr. Ranjeet Singh Jamwal, learned AAG appearing on the rival side has argued that prosecution has succeeded to establish a complete chain of circumstances leading to the only inference that it was the appellant who with the assistance of the co-accused has killed the deceased.
41. Before we cut across to the grounds of challenge urged in the memo of appeal, it shall be apt to recall the prosecution version, though at the cost of brevity.
42. The case set up by the investigating agency/the prosecution is that deceased-Hira Lal was married to co-accused Rachna on 27.11.2005 as per Hindu rites and ceremonies. According to the prosecution, the motive behind the 19 CRA No.21/2010 occurrence was illicit relations between the appellant and wife of the deceased. As they were not happy with the marriage of the deceased and the co-accused, they hatched a conspiracy to eliminate the deceased. Consequently, wife of the deceased made her husband to pay obeisance at the Holy Shrine of Shri Mata Vaishno Devi at Katra. They set out for the journey from Railway Station, Delhi on 01.12.2005. At Delhi, Railway Station, they were joined by the appellant, who as per the plan, was already carrying the sedatives i.e. a strip of Alprax tablets, commonly known as sleeping pills, and a quarter of English liqour „8 PM‟. The trio reached Jammu, Railway Station on 03.12.2005 from where they came to Katra in a Maruti Van bearing Registration No. 8419/JK02N and hired Room No. 104 at Prem International Hotel, Katra for a short stay. The appellant made entry in the name of the deceased, Hira Lal, vide entry No. 115, in his hand, in the Hotel Register. They went to their room. The appellant ordered three cups of tea and when deceased went to the washroom, the appellant taking advantage of his absence, mixed Alprax tablets in the cup of tea reserved for the deceased. All of them had tea. Since tea cup of the deceased was mixed with the sleeping pills, the deceased fell asleep. The appellant also tried to administer glass of liquor to the deceased on the pretext that it was medicine to ensure that the deceased became completely unconscious. However, the deceased after one sip threw it away because he was not used to it. Thereafter, the deceased fell into deep slumber. Both the appellant and co-accused had snacks and thereafter they went out to enquire for their return ticket from Katra. After some time, they came back to the Hotel room. In the evening, both the accused persons closed the room and turned on the T.V. at high volume. The deceased, who was in deep slumber under the influence of sleeping pills, had put on blanket over himself. The appellant caught hold of his neck and strangulated him, whereas his wife, co- 20 CRA No.21/2010 accused Rachna, caught hold of his legs till blood oozed out from his mouth. After the commission of the offence both of them dumped the dead body behind the mattresses lying in the Gallery. They also concealed the empty quarter of liquor and the remaining strip of the Alprax in the hotel dead stock and fled to Delhi.
43. It is the prosecution case that illicit relations between the appellant and wife of the deceased, co-accused Rachna, was the motive behind the murder of the deceased. Since they were not happy with the marriage of co-accused with the deceased, they hatched a criminal conspiracy to eliminate Hira Lal.
44. It is evident from the prosecution version stated above that the occurrence was committed in utmost secrecy in a Hotel room and, therefore, entire case of the prosecution is predominantly perched on the circumstantial evidence and the theory of last seen together.
Theory of last seen together
45. Before proceeding to the circumstantial evidence as also the motive behind the crime, it is pertinent to mention that since the deceased is alleged to have been last seen in the company of accused persons before the occurrence, therefore, it constitutes one of vital circumstances, in the chain of circumstances leading to the hypothesis of the guilt of accused.
46. The law relating to the last seen theory is by and large crystallized now. It no longer remains res integra now that "last seen theory" is one of the vital links in the chain of circumstances from which conclusion of guilt is drawn and once the theory of last seen is proved by the prosecution, the burden shifts on the accused to explain as to the cause of death of the deceased.
21 CRA No.21/2010
47. Section 106 of the Evidence Act, 1872 (the Evidence Act, for short) envisages that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon the said person. The "last seen theory", is based on this principle of law and if a person is last seen with the deceased, the said person is obliged to explain as to the death of the deceased. In a case which hinges on the circumstantial evidence, if an accused fails to offer plausible explanation in discharge of the burden placed on him under section 106 of the Evidence Act, it provides an additional link in the chain of circumstances proved against him.
48. However, be it noted that conviction of an accused cannot be based solely on the theory of last seen together as it only provides an additional link in the chain of circumstances against the accused and it is also pertinent to underline that if the time gap between the point of time when the accused is last seen in the company of the deceased and the deceased is found dead, is long, it would be highly unsafe to sustain conviction on the theory of last seen together. In other words, such time gap must be small to rule out the possibility of any person other than the accused being the author of the crime. Section 106 of the Evidence Act does not absolve the prosecution to prove the guilt of the accused beyond reasonable shadow of doubt under section 101 of the Evidence Act.
49. Hon‟ble Supreme Court in Nizam v. State of Rajasthan reported as (2016) 1 SCC 550 has laid down the following principles of last seen theory:
"Last seen theory" is important link in chain of circumstances that would point towards guilt of accused with some certainty. Such theory permits court to shift burden of proof to accused and he must then offer a reasonable explanation as to cause of death of deceased. But, it is not prudent to base conviction solely on "last seen theory". Such theory should be applied taking into consideration case of prosecution in its entirety and keeping in mind circumstances that precede and follow the point of being so last seen. Where time gap is long it would be unsafe to base conviction on „"last seen theory". It is safer to look for 22 CRA No.21/2010 corroboration from other circumstances and evidence adduced by prosecution."
(Emphasis Supplied)
50. To avoid the multiplication of authorities, reference in this respect may also be had to State of Rajasthan Vs. Kashi Ram ( 2006) 12 SCC 254, 2011 (1) Crimes 319 (SC) and 2016 (1) Crimes 94 (SC).
51. Although appellant has denied his presence at the place of occurrence as also his complicity in the crime, but it is the prosecution case that it was the appellant who had reserved tickets for the journey of the trio from Delhi Railway Station to Jammu. All three were brought from Jammu Railway Station to Prem International Hotel, Katra by PW Rajesh Sodhi on 03.12.2005 through Taxi No. 8419-JK02N. He made entry in the Hotel Register in the name of deceased Hira Lal and finally after mixing sleeping tablets in the cup of tea reserved for the deceased, he tried to administer liquor to the deceased to ensure that he falls completely unconscious to enable him to execute his plan of killing the deceased with the assistance of the co-accused.
52. Although investigating agency has committed a serious lapse by not seizing the reservation record of the Delhi Railway Station to prove that it was the appellant who had booked three tickets for his journey with deceased and his wife, the co-accused. However, identification of the appellant by the prosecution witnesses including PWs Vijay Kumar and Rajesh Sodi and positive testimony of PW Rajesh Sodhi that he had brought both the accused persons and the deceased from Jammu Railway Station to Prem International Hotel, Katra, proves presence of the appellant at the scene of the occurrence. The prosecution has succeeded to prove that it was the appellant who made entry in the Hotel Register for having booked Room No. 104 of Prem International Hotel, Katra as PW Rakesh 23 CRA No.21/2010 Hangloo, Incharge Scientific Officer (Documents) FSL, Jammu has admitted his report EXTP25 and stated that the specimen writings of the appellant were identical with his questioned writings on the entry Register of the Hotel. The prosecution has also succeeded to prove the finger prints of the appellant on the liquor bottle as the Scientific expert Finger Prints, FSL, Jammu-PW Shiban Lal Bhat has proved that questioned finger prints of the appellant on the bottle of whisky seized by the investigating agency during investigation were identical with his specimen finger prints vide his report EXTP27. PW Rohit Koul, Scientific Officer, FSL, Jammu has also admitted his report EXTP 26/1 that blister packets labeled as Alprax-0.5 received by him from the investigating agency contained the salt Alprazolam which is a tranquilizer and a hypnotic drug. This chain of circumstances is sufficient to indicate that deceased was last seen in the company of the appellant.
53. It is pertinent to mention that co-accused Rachna, wife of the deceased has admitted in her statement under Section 342 Cr.P.C. that after her marriage with the deceased, they came to Katra and stayed in the Prem International Hotel. Although she has denied her complicity in the crime, and tried to project a story that on her way back, when she along with her husband, the deceased, reached Pathankote, she felt exhausted and had headache, the deceased offered her a tablet which she consumed and fell asleep. She also stated that when she reached Delhi Railway Station, she was awakened by the passengers and found her husband missing. The story projected by the co-accused, on the face of it, appears to be a story of cock and bull and defies logic. The co-accused has failed to explain that once the couple had visited Katra for the holy pilgrimage, what prevented them from visiting the Holy Shrine and whether they stayed in any other hotel or not. She has also failed to narrate as to why they left Katra without 24 CRA No.21/2010 completing the pilgrimage and paying obeisance at the holy Shrine. The story of the co-accused is also belied by the recovery of the dead body of the deceased from the mattresses lying on the first floor of the Hotel, right in front of Room No. 104 proved to have been hired by the trio and it is further fortified by her identification as also identification of the appellant in the test identification parade, duly proved by the prosecution, the respondent State. Therefore, it is established that deceased was last seen not only in the company of the appellant but also in the company of co-accused Rachna.
54. In this view of the matter, the deceased having been last seen in the company of the accused persons provides a vital link in the chain of circumstances from which conclusion of complicity and guilt of both the accused persons, the appellant and co-accused can be drawn. The time gap between the point of time when the appellant and the co-accused were last seen in the company of the deceased and the deceased was found dead is also small as PW- Dr. Anju Bala, CHC Katra has clarified in her cross examination that the duration of death was few days at the time of conducting postmortem. It is pertinent to underline that dead body of the deceased was found unclaimed and was kept in the mortuary of the Hospital. His postmortem was conducted later on 08.12.2005. Since the time when the accused and the deceased were last seen together and the recovery of the dead body of the deceased is small, therefore, it also rules out the possibility of any person, other than the appellant and the co-accused, being authors of the crime. In these circumstances, the burden shifts on the accused persons to explain as to the cause of death of the deceased under Section 106 of the Evidence Act and both the appellant and the co-accused have failed to offer any plausible explanation in discharge of this burden.
25 CRA No.21/2010
55. However, as discussed earlier, conviction cannot be based solely on the theory of last seen together, as it only provides an additional link in the chain of circumstances. This takes us to analyze the prosecution evidence in order to find out that whether prosecution has succeeded to establish a chain of circumstances leading only to the hypothesis of the guilt of the appellant or both the appellant and the co-accused. For appreciating the contours of controversy in this respect, it shall be appropriate to discuss the principles governing the circumstantial evidence.
56. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no confusion other than one of guilt of accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave may be, cannot be a substitute for a proof and the court shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence.
57. The legal position as to how such matters should be examined has been expounded by Hon‟ble Supreme Court in Nizam‟s case (supra) in the following words:
"The case of the prosecution is entirely based on the circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
The principle of circumstantial evidence has been reiterated by this Court in a plethora of cases. In Bodhraj v. State of J&K, wherein this Court quoted a number of judgments and held as under; (SCC pp. 55- 56, paras 10-11) 26 CRA No.21/2010 "10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, Eradu v. State of Hyderabad, Erabhadrappa v. State of Karnataka, State of U.P vs. Sukhbasi, Balwinder Singh vs. State of Pujab and Ashok Kumar Chatterjee v. State of M.P. ). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab it was laid down that where the case depends upon the conclusion drawn from circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga Reddy VS. State of A.P, wherein it has been observed thus:
(SCC pp. 206-07, para 21)
21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
58. The aforesaid principle with respect to the circumstantial evidence has been elaborated by the Apex Court in Varun Choudhary v. State of Rajasthan (AIR 2011 SC 72), Raj Kumar Singh v. State of Rajasthan [(2013) 5 SCC 722], 2011 (1) Crimes 319 (SC), 2014 (i), SLJ 147 (HC), (2011) 12 SCC 545 and (2014) 3 SCC 412.
59. Reverting to the present case, it is the prosecution version that co-accused Rachna immediately after her marriage, as per a well knit plan, made her husband, the deceased, to visit Katra to pay obeisance at the holy Shrine of Shri Mata Vaishno Devi. Therefore, the chain of circumstances would commence from New Delhi, the home town of deceased and his wife- the co-accused, wherefrom the couple, after their marriage, set out for the journey. It is pertinent to note that the co-accused in her statement under Section 342 Cr.P.C., though denied the incriminating evidence against her as also her involvement in the occurrence, but admitted that she along with her husband came to Katra for the holy pilgrimage.
27 CRA No.21/2010
60. PW-Sohan Pal Singh, father of the deceased has also stated that he had seen of his son, the deceased, and daughter-in-law, the co-accused and made them board a ricksaw for the journey to Katra. Therefore, in so far as the deceased and the co-accused are concerned, there is no dispute with respect to their presence at the scene of occurrence i.e. Room No. 104 of Prem International Hotel, Katra. It is only the appellant, stated to be paramour of the co-accused, who not only denied having any relationship with the wife of the deceased, but also denied his presence at the scene of occurrence. Therefore, the first and foremost question, which arises for consideration is whether the appellant joined the couple at New Delhi, Railway Station, came to Katra and checked in the same room of the Hotel and was present at the place of occurrence.
61. As per the prosecution case, it was the appellant who had reserved all the three tickets for their railway journey from New Delhi to Katra. In these circumstances, the investigating Agency was obliged to seize the relevant record with respect to reservation of railway tickets of the trio from New Delhi, Railway Station to Jammu. PWs-Sohan Pal Singh, Vinod Kumar and Anil Kumar have deposed that it was the appellant, who got the railway tickets reserved from Delhi to Jammu and PW-Anil Kumar has also stated that he confirmed this fact from the Delhi, Railway Station. The failure on the part of the Investigating Officer to investigate into this aspect of the case is indeed a serious lapse.
62. Be that as it may, it is also the prosecution case that when postmortem findings during inquest proceedings revealed that coagulated bluish spots were found on the neck of the deceased and the deceased was throttled to death, they commenced investigation of murder and it came to the light that appellant along with the deceased and his wife, the co-accused, travelled from Jammu, Railway 28 CRA No.21/2010 Station, through a Maruti Van bearing Registration no. 8419/JK02, being driven by driver PW-Rajesh Sodhi on 03.12.2005 and they were dropped at Prem International Hotel, Katra. Pertinently, PW-Rajesh Sodhi has clearly stated in his statement in the trial Court that he had ferried the accused persons along with one more person in his Taxi bearing afore-noted registration number from Jammu, Railway Station to Katra and dropped them at Prem International Hotel, Katra. He has clarified in his cross examination that since he had brought the accused persons along with another person from Railway Station, Jammu to Katra and subsequently, saw them in the Katra Court, therefore, he could identify them in the dock. The defence has failed to shake the credibility of the testimony of PW- Rajesh Sodhi.
63. It is further case of the prosecution that during investigation, it surfaced that it was the appellant who made entry in the Hotel Register in the name of the deceased at the time of checking in and the investigating officer has seized the said Register. It is also case of the prosecution case that appellant ordered for three cups of tea and when deceased went to the washroom, the appellant, taking advantage of his absence, mixed Alprax tablets in the cup of tea, reserved for the deceased and when deceased had the said cup of tea, he felt drowsy and fell asleep. The appellant also tried to administer liquor to the deceased, which deceased had thrown away after taking a sip because he was not used to it. After sometime, the deceased fell asleep. The appellant made a disclosure, during investigation, that the strip of Alprax tablets with remaining five tablets and the quarter of Whisky were lying on the spot and later said articles were recovered at the instance of the appellant as a consequence of disclosure made by him. 29 CRA No.21/2010
64. PW-Inder Singh-ASI is witness to the inquest proceedings and he has stated that he seized the entry Register, along with Bill dated 03.12.2005, regarding entries of Prem International Hotel, Katra at S. No.115 dated 03.12.2005.
65. Finger prints of the appellant from the empty bottle of liquor were also lifted by the investigating agency and said finger prints along with seized articles were sent for chemical examination to FSL Jammu. PW-Kuldeep Singh Constable is witness to the disclosure statement as also the consequent recovery at the instance of the appellant. He has clearly stated that appellant made disclosure in his presence in Police Station, Katra that one pack containing some liquor and a strip of Alprax-05 with five tablets was lying in the gallery of the second storey of the Hotel and he could recover the same. He has stated that appellant himself brought out and recovered the said articles in consequence of disclosure made by him from a black polythene bag lying in the gallery. He has admitted the disclosure statement EXPW-KS and the memo of recovery EXPW- KS-1. His statement has been corroborated by the PW-S.S. Sambyal-Inspector.
66. PW-Rakesh Hangloo, Incharge Scientific Officer (Documents) FSL, Jammu has examined the specimen writings and questioned writings of the appellant on the entry Register and as per his report EXTP25, the specimen writings and the questioned writings on the entry Register of Prem International Hotel, Katra were of the appellant, Romesh Thakur. Therefore, it is established that it was the appellant, who made entry of the trio in the hotel Register, in the name of deceased-Hira Lal. PW-Shiban Lal Bhat, Scientific expert Finger Prints, FSL, Jammu has examined the specimen finger prints and questioned finger prints of the appellant on the empty quarter of whisky and found that both the 30 CRA No.21/2010 finger prints were identical and of the same person and belonged to appellant- Romesh Thakur. He has admitted his report EXTP27. PW-Rohit Koul, Scientific Officer, FSL, Jammu vide his report EXPT-P26/1 has certified that blister packet labeled as Alprax-0.5 received by him in the present case contained Alprazolam, which is a tranquilizer and a hypnotic drug. He has also certified that orange coloured liquid found in the glass bottle labeled 8 PM whisky contained ethyl alcohol with the concentration of 28% V/V and admitted his report EXT-P26/2. Therefore, it is established that it was the appellant, who tried to administer alcohol to the deceased and mixed the tranquilizer or sedative pills in the cup of tea reserved for the deceased to ensure that deceased became unconscious, so that he, with the assistance of the co-accused, could execute his plan to kill the deceased.
67. It is evident from the statement of aforesaid witnesses that it was the appellant who joined the couple from Delhi, Railway Station, came to Katra, through Taxi No. 8419-JK02N, being driven by PW-Rajesh Sodhi, made entry in the Hotel Register in the name of the deceased. He mixed sedative tables in the cup of tea, reserved for the deceased and tried to administer liquor to the deceased to ensure that deceased was unconscious so that he could execute his plan to kill the deceased with the help of co-accused. Therefore, the prosecution has not only succeeded to establish the presence of the appellant at the scene of occurrence, but this complete and unbroken chain of circumstances leads to the only conclusion that it was the appellant who, with the assistance of the co- accused, had killed the deceased and this chain of circumstances is consistent with the hypothesis of the guilt of the appellant.
31 CRA No.21/2010Test Identification Parade
68. The presence of the appellant at the crime scene is already proved by a complete chain of circumstances leading to the hypothesis of his guilt. The respondent/prosecution also seeks to rely upon the test identification parade of the appellant to establish his presence at the scene of occurrence as also his complicity in the gruesome murder of the deceased.
69. The law relating to the test identification parade is well settled. The object of test identification parade is to test the observation and memory of a witness as to the identification of an accused who is stranger to him. As a general rule of law dock identification of an accused for the first time in the Court is a substantive piece of evidence and can form the basis for conviction without the same being corroborated by any other evidence. The test identification parade simply corroborates the same. Since the probative value of dock identification of an accused, being inherently of a weak character, is not much, therefore, test identification of an accused is considered a safe rule of prudence. Hon‟ble Supreme Court in Dana Yadav Alias Dahu and Ors. v. State of Bihar reported as AIR 2002 SC 3225 has extensively dealt with the object and import of test identification parade and ruled as below:
"It is also well settled that failure to hold test identification parade, which should be held with reasonable dispatch, does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. Question is, what is its probative value? Ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that 32 CRA No.21/2010 it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence. We are fortified in our view by a catena of decisions of this Court in the cases of Kanta Prashad v. Delhi Admn. (AIR 1958 SC 350), Vaikuntam Chandrappa (AIR 1960 SC 1340), Budhsen (AIR 1970 SC 1321), Kanan v. State of Kerala (AIR 1979 SC 1127), Mohanlal Gangaram Gehani v. State of Maharashtra (AIR 1982 SC 839), Bollavaram Pedda Narsi Reddy (AIR 1991 SC 1468), State of Maharashtra v. Sukhdev Singh (AIR 1992 SC 2100), Jaspal Singh v. State of Punjab (AIR 1997 SC 332), Raju v. State of Maharashtra (AIR 1998 SC 275), Ronny (AIR 1998 SC 1251), George v. State of Kerala (AIR 1998 SC 1376), Rajesh Govind Jagesha (AIR 2000 SC 160), State of H.P. v. Lekh Raj (AIR 1999 SC 3916) and Ramanbhai Naranbhai Patel v. State of Gujarat (1999 AIR SCW 4770)."
70. PW-Inspector S. S. Sambyal got the test identification parade of the appellant and the co-accused conducted in the presence of PW-Sanjay Badyal Tehsildar, Executive Magistrate 1st Class, who has stated in the cross examination that accused were identified by the prosecution witnesses during the test identification parade and he has admitted his test identification report EXPW-SP. PWs Bhushan Kumar, Raj Kumar and Vijay Kumar, Hotel employees and PW Rajesh Sodhi have been cited as witnesses to the test identification parade. PW-Bhushan Kumar is the person who had seen the dead body of the deceased for the first time lying in the mattresses on the first floor of the Hotel room in front of Room No. 104. He has turned hostile. PW Raj Kumar turned out to be a hearsay witnesses. PW-Vijay Kumar, Sweeper of the hotel, though turned hostile, but admitted in the chief examination that there was one more person with the accused persons and on cross examination by the prosecution, he has clearly stated that he had identified accused persons amongst 4/5 persons in the presence of the Magistrate. Defence has failed to discredit his testimony. PW-Rajesh Sodhi, the Driver who brought the trio i.e. the deceased, the appellant and the co-accused from Jammu Railway Station to Prem International Hotel, Katra has also identified the appellant and the co-accused in test identification parade. Pertinently, the defence has failed to shake the 33 CRA No.21/2010 credibility of official witnesses, PW-S.S. Sambyal, Inspector and PW-Sanjay Badyal, the Executive Magistrate 1st Class as also the testimonies of the independent witnesses PWs-Vijay Kumar and Rajesh Sodhi in the cross examination. Therefore, prosecution has also succeeded to prove the presence of appellant and the co-accused at the scene of occurrence on the basis of their test identification parade.
Motive
71. According to the prosecution, the motive behind the murder of the deceased was illicit relations between the appellant and the co-accused, who happened to be the wife of the deceased.
72. The legal position regarding the importance of motive in cases relating to circumstantial evidence is trite now. Although failure to prove motive in such cases is not fatal by itself. However, if prosecution is able to establish its case on motive, it will also be a corroborative piece of evidence.
73. Hon‟ble Supreme Court in Nizam‟s case (supra), dealing with the concept of motive in cases resting on circumstantial evidence has observed that:
".................If the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence lending assurance to the prosecution case. But even if the prosecution has not been able to prove the motive, that will not be a ground to throw away the prosecution case. The absence of proof of motive only demands careful scrutiny and deeper analysis of evidence adduced by the prosecution."
(Emphasis Supplied)
74. PWs Hari Rattan Singh, Sohan Pal Singh (father of the deceased), Vinod Kumar (cousin brother of the deceased) and Anil Kumar (brother-in-law of the deceased) have stated that they came to know about illicit relations of the 34 CRA No.21/2010 appellant and co-accused from the neighborers of the appellant and from the media reports of newspapers and the magazines.
75. It is settled position of law that newspapers and magazines are at best secondary evidence of their contents only and are not admissible in evidence unless evidence of the reporter, editor or publisher is brought before the Court to testify that how, when, where and in what manner the material of news item was collected, edited and modified. (See AIR 1994 SC 1733 and AIR 1969 SC 1201)
76. It is also trite position of law that motive being a state of mind, direct evidence to prove motive is seldom available. We may, in this context, profitably refer to the pronouncement of Supreme Court in Nathuni Yadav and others v. State of Bihar and another (AIR 1997 SC 1808) which reads thus:
"Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in R. v. Palmer (Shorthand Report at page 308 CCC May 1856) thus:
"But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties".
Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental Condition existed in the mind of the assailant."
77. It was also observed, in Nathuni Yadav that in some cases, it may not be difficult to establish motive through direct evidence, while in other cases, 35 CRA No.21/2010 inferences from circumstances may help in discerning the mental propensity of the person concerned.
78. Adverting to the present case, it has been proved that appellant joined the newly-wed couple i.e. the deceased and the co-accused from Delhi, Railway Station, came to Prem International Hotel, Katra along with them through Taxi No. 8419-JK02N, being driven by PW Rajesh Sodhi, made entry in the Hotel Register in the name of the deceased, checked in same room of the hotel, administered sedatives in the cup of tea reserved for the deceased and also tried to administer liquor to the deceased to ensure that he was totally unconscious so that he, with the assistance of the co-accused, could execute his plan. This chain of events is sufficient to infer that the appellant and co-accused had illicit relations, otherwise, this was none of the business of the appellant to accompany the newly married couple, set out on a holy pilgrimage and it is pertinent to underline that appellant could execute his plan with the assistance of the co- accused only, as the presence of both of them at the scene of crime has been proved by the prosecution by credible and trustworthy evidence. It also needs a specific mention that when co-accused was interrogated by her family members in the presence of PWs-Hari Rattan Singh and Vinod Kumar, she projected a false story that while she along with her husband- the deceased were coming back by train via Pathankote, they ate food, she felt headache, the deceased gave her a tablet, due to which, she fell asleep and when she was awakened by the passengers at New Delhi, Railway Station, she found her husband missing. However, PW-Hari Rattan Singh has deposed that when co-accused Rachna was pressurized by her family members, she confessed that she along with her husband and the appellant went to Prem International Hotel, Katra. They were three in number and she disclosed the name of the appellant and admitted that 36 CRA No.21/2010 they had killed Hira Lal. Although her extra judicial confession revealed by PW Hari Rattan Singh is not supported by rest of the prosecution witnesses and cannot be made basis for conviction of the appellant, however, as already stated, since prosecution has succeeded to prove the presence of the appellant at the scene of occurrence as the entry made by the appellant in the Hotel Register and his finger prints on the liquor bottle, have been proved, therefore, learned trial Court has rightly inferred that the motive behind the crime committed by the appellant and the co-accused was illicit relations between the duo. Conduct of accused persons
79. Finally, in a case perched on the circumstantial evidence, another aspect of the case as also the principle of law, to be kept in mind, is conduct of the accused. The legal position is that when incriminating circumstances are put to an accused and the said accused either offers no explanation or offers an explanation which he fails to prove and same is found to be untrue, then it becomes an additional link in the chain of circumstances. The conduct of an accused preceding, attending and following the crime is also relevant fact in such cases. Profitable reference in this respect may be made to State of Tamil Nadu v. Rajendran reported as AIR 1999 SC 3535, State of U.P. v. Dr. Ravindra Prakash Mittal reported as AIR 1992 SC 2045, State of Maharastra v. Suresh reported as [(2000) 1 SCC 471] and Ganesh Lal v. State of Rajasthan, reported as (2001) AIR SCW 5251.
80. Reverting to the present case, appellant not only denied the incriminating evidence against him in his statement under Section 342 Cr.P.C. but he took a clear stand that he never accompanied the deceased and co-accused to Katra. Appellant has not led any evidence in support of his defence and on the other hand, as already discussed, prosecution has not only succeeded to prove the 37 CRA No.21/2010 presence of appellant at the crime scene, but also his involvement in the commission of offence as entry in the entry register of the hotel is proved to have been made by him and his fingerprints on the liquor bottle have also been proved. Prosecution has also succeeded to prove the disclosure statement made by him and consequent recovery of incriminating articles at his instance.
81. Similarly, the story projected by co-accused that on her way back with the deceased from Katra, when they reached Pathankot, she felt headache, deceased gave her a tablet, which she had and fell asleep and when she awoke at Delhi Railway Station, she found her husband missing. The co-accused has not only failed to prove the story projected by her, but she has also failed to offer a plausible explanation as to why she and her husband decided to return without paying obeisance at the Holy Shrine and without completing the pilgrimage. Co- accused after reaching Delhi straightway went to her parental home. She also failed to explain as to what prevented her from immediately lodging a missing compliant of her husband to the police and why did not she inform her in-laws about the incident. On the contrary, prosecution has succeeded to prove the presence of both the accused persons at the scene of crime and as dead body of the deceased was recovered from Prem International Hotel Katra, the story projected by co-accused is proved to be untrue. In these circumstances, mere denial of incriminating circumstances by the appellant and co-accused coupled with absence of any explanation or an explanation, which is found to be untrue, are held to be inconsistent with their innocence and consistent with the only hypothesis that both of them have committed the murder of the deceased.
82. On the conspectus of the present case, the minute evaluation and assiduous assessment of the prosecution case canvasses a picture that creates a conceivable 38 CRA No.21/2010 complete chain of circumstances, commencing right from Delhi, the native town of the deceased and his wife, co-accused Rachna, from where they set out for the holy pilgrimage to Katra, they were joined by the appellant from Delhi Railway Station and came to Katra. It stands proved that three of them were brought from Jammu Railway Station to Prem International Katra, where appellant made entry in the hotel register, in the name of the deceased. All of them checked-in the same room No. 104, where the appellant mixed Alprax, a tranquilizer and a hypnotic drug in the cup of tea reserved for the deceased to ensure that the deceased fall asleep so that he could execute his plan to eliminate the deceased, with the assistance of the co-accused. The prosecution has succeeded to prove handwriting of the appellant on the entry register of the hotel and his finger prints on the liquor bottle. It is also established from the testimonial potency of the prosecution witnesses that deceased was last seen in the company of both the appellant and the co-accused. The recovery of incriminating articles, including strip of Alprax and liquor bottle at the instance of the appellant, as a consequence of disclosure made by him provides an additional link. The motive behind the ghastly murder of the deceased was illicit relations between the appellant and the co-accused, who happened to be wife of the deceased. At last but not the least, failure on the part of the appellant to offer a plausible explanation to the incriminating circumstances against him proves fatal.
83. We are convinced that prosecution also succeeded to prove not only the presence of the appellant, but also that of the co-accused at the scene of occurrence. We have carefully scanned the evidence on record and it brooks no demur that prosecution has also established that appellant succeeded to strangulate and throttle the deceased to death with the aid and assistance of the co-accused. Learned trial Court has fallen in grave error of law to conclude on 39 CRA No.21/2010 the supposed premise that since finger prints of the co-accused from the legs of the deceased were not lifted by the investigating agency, therefore prosecution evidence regarding complicity and guilt of the co-accused was not clinching and beyond reasonable shadow of doubt. It is surprising to note that learned trial Court has said so, despite holding that prosecution has succeeded to prove the test identification parade of both the accused persons and the motive behind the crime. Learned trial court has also relied upon the theory of the deceased last seen in the company of both the appellant and the co-accused. The false story projected by the co-accused, which she failed to prove, the explanation offered by her found to be untrue and her unnatural conduct after the commission of the offence would also prove her complicity in the gruesome murder of her husband.
84. The judgment of acquittal of the co-accused, in these circumstances, recorded by learned trial Court being afflicted with legal malady does not sustain. It is shocking that respondent State has not assailed the acquittal of co-accused, despite cogent and trustworthy evidence available on the record. However, since the acquittal of the co-accused has not been questioned by the respondent and co- accused could not be heard in the matter, we refrain to set aside the acquittal.
85. Having regard to the aforesaid discussion, we do not find any illegality muchless perversity in the impugned judgment of conviction.
86. This takes us to the ultimate analysis of the quantum of sentence imposed upon the appellant.
87. Proportion between crime and punishment remains a strong influence in determination of sentences. Generally, the Criminal Law adheres to the principle of proportionality in prescribing the sentence according to the culpability and 40 CRA No.21/2010 criminal conduct of an accused. The criminal law responds to the reformative theory or the deterrence machinery depending upon the factual scenario of each case, as also the nature of crime, the manner in which it was premeditated and executed, the motive preceding the commission of the crime, the conduct of the accused preceding, attending and after the commission of the offence, the nature of the weapon of offence and the attending circumstances. In order to decide a just and appropriate sentence, having regard to the facts and circumstances of a case, the aggravating and extenuating circumstances in which the crime has been committed are required to be delicately balanced in a dispassionate manner and such act of balancing is indeed a difficult task.
88. The Apex Court had an occasion to discuss the process of sentencing in Dhananjoy Chaterjee Vs. State of W.B. reported as 1994 (2) SCC 220 and observed that shockingly large number of criminals go unpunished thereby encouraging the criminals and in the ultimate making justice suffer by weakening the system‟s credibility. A similar view was expressed by Hon‟ble Supreme Court in Ravji @ Ram Chandra Vs. State of Rajasthan reported as 1996 (2) SCC 175. Consequently, criminal courts have been adhering to the principles of proportionality in prescribing the sentence in accordance to the crime committed.
89. It needs a specific mention that law provides only two options between death sentence and imprisonment for life for conviction under Section 302 RPC. Life imprisonment is the rule and death sentence is an exception. The capital punishment or the extreme penalty of death sentence is resorted to only when life sentence is found altogether inadequate. If we recall the manner, in which, the life of the deceased, the only son of his parents and an engineer by profession has been taken away by none other than his wife and her paramour, within six days 41 CRA No.21/2010 of his marriage and ask the common man about the sentence, the common man without any hesitation would propose death sentence for the appellant in view of the enormity of the crime committed by him, but the legal parameters do not permit us. Learned trial Court has rightly balanced the aggravating and mitigating circumstances before handing down conviction upon the appellant. Although prosecution has established a complete unbroken chain of circumstances to prove guilt of the appellant, but there is nothing on the record to suggest that appellant has any criminal background, which calls for imposition of extreme penalty of death sentence. Undoubtedly, the crime committed by the appellant is unpardonable but keeping in view the legal parameters the present case does not fall in the category of „rarest of the rare case‟. Thus considered, we are of the opinion that appellant has been rightly sentenced, by learned trial Court, for the minimum imprisonment prescribed under law i.e. imprisonment for life for the offence committed by him under Section 302 RPC.
90. Having regard to what has been discussed and observed hereinabove, we do not find any illegality, muchless perversity in the impugned judgment of conviction and the order of sentence passed by learned trial Court against the appellant. The impugned judgment and order are well reasoned and we have not been persuaded to take a different view from the one taken by learned trial Court. Hence, the present appeal being devoid of any merit, is dismissed and the impugned judgment of conviction and order of sentence are upheld. Bail bonds of the appellant shall stand cancelled and he is directed to surrender before the Superintendent, Jail concerned within a period of seven days from today to serve the remainder of sentence, failing which, learned trial court shall proceed in accordance with law.
42 CRA No.21/2010
91. The Reference is answered accordingly.
92. Record be returned to the trial Court forthwith.
93. A copy of this judgment be forwarded to learned trial Court for compliance.
(RAJESH SEKHRI) (TASHI RABSTAN)
JUDGE CHIEF JUSTICE (A)
JAMMU
30.12.2022
Paramjeet
Whether the order is reportable? Yes