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Monday, January 31, 2011



                   IN THE SUPREME COURT OF INDIA


           CIVIL APPEAL NO.1132 /2011 @ SLP(C) No.3109/2011
     (Arising out of Special Leave Petition (Civil) CC No. 19869 of 2010)

Jagpal Singh & Ors.                                 ..   Appellant (s)


State of Punjab & Ors.                              ..   Respondent (s)


Markandey Katju, J.

1.      Leave granted.

2.      Heard learned counsel for the appellants.

3.      Since time immemorial there have been common lands inhering in the

village communities in India, variously called gram sabha land, gram

panchayat land, (in many North Indian States), shamlat deh (in Punjab etc.),

mandaveli and poramboke land (in South India), Kalam, Maidan, etc.,

depending on the nature of user. These public utility lands in the villages

were for centuries used for the common benefit of the villagers of the village

such as ponds for various purposes e.g. for their cattle to drink and bathe, for

storing their harvested grain, as grazing ground for the cattle, threshing

floor, maidan for playing by children, carnivals, circuses, ramlila, cart

stands, water bodies, passages, cremation ground or graveyards, etc. These

lands stood vested through local laws in the State, which handed over their

management to Gram Sabhas/Gram Panchayats.              They were generally

treated as inalienable in order that their status as community land be

preserved.   There were no doubt some exceptions to this rule which

permitted the Gram Sabha/Gram Panchayat to lease out some of this land to

landless labourers and members of the scheduled castes/tribes, but this was

only to be done in exceptional cases.

4.    The protection of commons rights of the villagers were so zealously

protected that some legislation expressly mentioned that even the vesting of

the property with the State did not mean that the common rights of villagers

were lost by such vesting. Thus, in Chigurupati Venkata Subbayya vs.

Paladuge Anjayya, 1972(1) SCC 521 (529) this Court observed :

                    "It is true that the suit lands in view of Section 3 of
             the Estates Abolition Act did vest in the Government.
             That by itself does not mean that the rights of the
             community over it were taken away. Our attention has
             not been invited to any provision of law under which the
             rights of the community over those lands can be said to
             have been taken away. The rights of the community over
             the suit lands were not created by the landholder. Hence
             those rights cannot be said to have been abrogated by
             Section 3) of the Estates Abolition Act."

5.    What we have witnessed since Independence, however, is that in large

parts of the country this common village land has been grabbed by

unscrupulous persons using muscle power, money power or political clout,

and in many States now there is not an inch of such land left for the common

use of the people of the village, though it may exist on paper. People with

power and pelf operating in villages all over India systematically encroached

upon communal lands and put them to uses totally inconsistent with its

original character, for personal aggrandizement at the cost of the village

community. This was done with active connivance of the State authorities

and local powerful vested interests and goondas.       This appeal is a glaring

example of this lamentable state of affairs.

6.    This appeal has been filed against the impugned judgment of a

Division Bench of the Punjab and Haryana High Court dated 21.5.2010. By

that judgment the Division Bench upheld the judgment of the learned Single

Judge of the High Court dated 10.2.2010.

7.    It is undisputed that the appellants herein are neither the owner nor the

tenants of the land in question which is recorded as a pond situated in village

Rohar Jagir, Tehsil and District Patiala. They are in fact trespassers and

unauthorized occupants of the land relating Khewat Khatuni No. 115/310,

Khasra No. 369 (84-4) in the said village. They appear to have filled in the

village pond and made constructions thereon.

8.    The Gram Panchayat, Rohar Jagir filed an application under Section

7 of the Punjab Village Common Lands (Regulation) Act, 1961 to evict the

appellants herein who had unauthorizedly occupied the aforesaid land. In its

petition the Gram Panchayat, Rohar Jagir alleged that the land in question

belongs to the Gram Panchayat, Rohar as is clear from the revenue records.

However, the respondents (appellants herein) forcibly occupied the said land

and started making constructions thereon illegally.      An application was

consequently moved before the Deputy Commissioner informing him about

the illegal acts of the respondents (appellants herein) and stating that the

aforesaid land is recorded in the revenue records as Gair Mumkin Toba i.e. a

village pond. The villagers have been using the same, since drain water of

the village falls into the pond, and it is used by the cattle of the village for

drinking and bathing. Since the respondents (appellants herein) illegally

occupied the said land an FIR was filed against them but to no avail. It was

alleged that the respondents (appellants herein) have illegally raised

constructions on the said land, and the lower officials of the department and

even the Gram Panchayat colluded with them.

9.    Instead of ordering the eviction of these unauthorized occupants, the

Collector, Patiala surprisingly held that it would not be in the public interest

to dispossess them, and instead directed the Gram Panchayat, Rohar to

recover the cost of the land as per the Collector's rates from the respondents

(appellants herein).    Thus, the Collector colluded in regularizing this

illegality on the ground that the respondents (appellants herein) have spent

huge money on constructing houses on the said land.

10.   Some persons then appealed to the learned Commissioner against the

said order of the Collector dated 13.9.2005 and this appeal was allowed on

12.12.2007. The Learned Commissioner held that it was clear that the Gram

Panchayat was colluding with these respondents (appellants herein), and it

had not even opposed the order passed by the Collector in which directions

were issued to the Gram Panchayat to transfer the property to these persons,

nor filed an appeal against the Collector's order.

11.   The learned Commissioner held that the village pond has been used

for the common purpose of the villagers and cannot be allowed to be

encroached upon by any private respondents, whether Jagirdars or anybody

else. Photographs submitted before the learned Commissioner showed that

recent attempts had been made to encroach into the village pond by filling it

up with earth and making new constructions thereon. The matter had gone

to the officials for removal of these illegal constructions, but no action was

taken for reasons best known to the authorities at that time. The learned

Commissioner was of the view that regularizing such kind of illegal

encroachment is not in the interest of the Gram Panchayat. The learned

Commissioner held that Khasra No. 369 (84-4) is a part of the village pond,

and the respondents (appellants herein) illegally constructed their houses at

the site without any jurisdiction and without even any resolution of the Gram


12.   Against the order of the learned Commissioner a Writ Petition was

filed before the learned Single Judge of the High Court which was dismissed

by the judgment dated 10.2.2010, and the judgment of learned Single Judge

has been affirmed in appeal by the Division Bench of the High Court.

Hence this appeal.

13.      We find no merit in this appeal. The appellants herein were

trespassers who illegally encroached on to the Gram Panchayat land by

using muscle power/money power and in collusion with the officials and

even with the Gram Panchayat. We are of the opinion that such kind of

blatant illegalities must not be condoned. Even if the appellants have built

houses on the land in question they must be ordered to remove their

constructions, and possession of the land in question must be handed back to

the Gram Panchayat. Regularizing such illegalities must not be permitted

because it is Gram Sabha land which must be kept for the common use of

villagers of the village. The letter dated 26.9.2007 of the Government of

Punjab permitting regularization of possession of these unauthorized

occupants is not valid. We are of the opinion that such letters are wholly

illegal and without jurisdiction. In our opinion such illegalities cannot be

regularized.   We cannot allow the common interest of the villagers to suffer

merely because the unauthorized occupation has subsisted for many years.

14.   In M.I. Builders (P) Ltd. vs. Radhey Shyam Sahu, 1999(6) SCC

464 the Supreme Court ordered restoration of a park after demolition of a

shopping complex constructed at the cost of over Rs.100 crores. In Friends

Colony Development Committee vs. State of Orissa, 2004 (8) SCC 733

this Court held that even where the law permits compounding of

unsanctioned constructions, such compounding should only be by way of an

exception. In our opinion this decision will apply with even greater force in

cases of encroachment of village common land. Ordinarily, compounding in

such cases should only be allowed where the land has been leased to

landless labourers or members of Scheduled Castes/Scheduled Tribes, or the

land is actually being used for a public purpose of the village e.g. running a

school for the villagers, or a dispensary for them.

15.   In many states Government orders have been issued by the State

Government permitting allotment of Gram Sabha land to private persons and

commercial enterprises on payment of some money. In our opinion all such

Government orders are illegal, and should be ignored.

16.   The present is a case of land recorded as a village pond. This Court in

Hinch Lal Tiwari vs. Kamala Devi, AIR 2001 SC 3215 (followed by the

Madras High Court in L. Krishnan vs. State of Tamil Nadu, 2005(4)

CTC 1 Madras) held that land recorded as a pond must not be allowed to be

allotted to anybody for construction of a house or any allied purpose. The

Court ordered the respondents to vacate the land they had illegally occupied,

after taking away the material of the house. We pass a similar order in this


17.     In this connection we wish to say that our ancestors were not fools.

They knew that in certain years there may be droughts or water shortages for

some other reason, and water was also required for cattle to drink and bathe

in etc. Hence they built a pond attached to every village, a tank attached to

every temple, etc.     These were their traditional rain water harvesting

methods, which served them for thousands of years.

18.     Over the last few decades, however, most of these ponds in our

country have been filled with earth and built upon by greedy people, thus

destroying their original character.    This has contributed to the water

shortages in the country.

19.     Also, many ponds are auctioned off at throw away prices to

businessmen for fisheries in collusion with authorities/Gram Panchayat

officials, and even this money collected from these so called auctions are not

used for the common benefit of the villagers but misappropriated by certain

individuals. The time has come when these malpractices must stop.

20.   In Uttar Pradesh the U.P. Consolidation of Holdings Act, 1954 was

widely misused to usurp Gram Sabha lands either with connivance of the

Consolidation Authorities, or by forging orders purported to have been

passed by Consolidation Officers in the long past so that they may not be

compared with the original revenue record showing the land as Gram Sabha

land, as these revenue records had been weeded out. Similar may have been

the practice in other States. The time has now come to review all these

orders by which the common village land has been grabbed by such

fraudulent practices.

21.   For the reasons given above there is no merit in this appeal and it is


22.   Before parting with this case we give directions to all the State

Governments in the country that they should prepare schemes for eviction of

illegal/unauthorized      occupants       of       Gram        Sabha/Gram

Panchayat/Poramboke/Shamlat land and these must be restored to the Gram

Sabha/Gram Panchayat for the common use of villagers of the village. For

this purpose the Chief Secretaries of all State Governments/Union

Territories in India are directed to do the needful, taking the help of other

senior officers of the Governments. The said scheme should provide for the

speedy eviction of such illegal occupant, after giving him a show cause

notice and a brief hearing. Long duration of such illegal occupation or huge

expenditure in making constructions thereon or political connections must

not be treated as a justification for condoning this illegal act or for

regularizing the illegal possession. Regularization should only be permitted

in exceptional cases e.g. where lease has been granted under some

Government notification to landless labourers or members of Scheduled

Castes/Scheduled Tribes, or where there is already a school, dispensary or

other public utility on the land.

23.   Let a copy of this order be sent to all Chief Secretaries of all States

and Union Territories in India who will ensure strict and prompt compliance

of this order and submit compliance reports to this Court from time to time.

24.   Although we have dismissed this appeal, it shall be listed before this

Court from time to time (on dates fixed by us), so that we can monitor

implementation of our directions herein.     List again before us on 3.5.2011

on which date all Chief Secretaries in India will submit their reports.

                                                     [Markandey Katju]

                                                     [Gyan Sudha Mishra]
New Delhi;
January 28, 2011

Saturday, January 29, 2011




          CRIMINAL APPEAL NO. 1360 OF 2003

State through C.B.I                           ... Appellant


Mahender Singh Dahiya                       ...Respondent



1.   This appeal is directed against the final order of the

     High Court of Delhi dated 19th December, 2002

     passed in Criminal Appeal No. 169 of 1999,

     whereby the accused Dr. Mahender Singh Dahiya

     has been acquitted of the charges under Sections

     302 and 201, Indian Penal Code (for short `IPC') by

     setting aside the judgment of the trial court whereby

     he had been convicted under Sections 302 and 201

     IPC and sentenced to imprisonment for life and fine

     of Rs.5,000/- for the offence under Section 302 IPC

    and also imprisonment for seven years and fine of

     Rs.5,000/- for offence under Section 201 IPC.

2.   Before    the    trial   court,     the    prosecution       had

     succeeded in proving that Dr. Mahender Singh

     Dahiya (hereinafter referred to as `the respondent')

     had     committed the murder of his wife Namita, a

     British national of Indian origin, on the intervening

     night           of 27th/28th May, 1979. The murder was

     allegedly committed on the very first night of the

     honeymoon in room No. 415, Hotel Arenberg,

     Brussels, Belgium.         It is further the case of the

     prosecution that after committing the murder, the

     respondent       had     dismembered       and   extensively

     mutilated the body of the victim. He subsequently

     disposed of the body parts at different places in the

     city of Brussels. This was done with the intention of

     destroying the evidence of the murder.

3.   The     aforesaid      conviction    and    sentence         were

     challenged before the Delhi High Court by way of an

    appeal.   The High Court upon re-appraisal of the

     entire evidence accepted the appeal and acquitted

     the respondent of both the charges.   Aggrieved by

     the aforesaid judgment of the High Court, the State

     through CBI, New Delhi is in appeal before this


4.   The High Court notices at the very outset of the

     impugned judgment that this is an unusual case

     and perhaps the first of its kind. We are of the

     opinion that the High Court had good reasons for

     making such a statement. The peculiarity which

     makes this murder case rather rare is not only the

     ghastly and the brutal manner in which the offence

     is alleged to have been committed but also the

     complexities created by a number of unique factors.

     The accused respondent herein is an Indian. He is

     an Orthopedic Surgeon. The alleged victim of the

     crime Namita, though of Indian origin was a British

     citizen. She had grown up in England since she was

     5 or 6 years old. The offence was allegedly

committed     in   a    third     country,     i.e.,    Belgium.

Consequently, the investigation of the case was

conducted in three different countries. Initially, the

Belgium     authorities         investigated      the     crime.

Thereafter, the Scotland Yard in London also

participated in the investigation. It was concluded

in India. The investigation in Belgium and U.K. had

been conducted according to the law and procedure

of those countries. This led to its own difficulties.

Initially, the Belgium authorities had requested for

extradition of the respondent for his trial in

Belgium. Later, the request was abandoned by the

Belgium     authorities.    The     case     was       ultimately

investigated by the CBI and the charge sheet was

presented              on 30th July, 1985. At the trial, a

large number of witnesses being foreign nationals

were examined on commission either in Belgium or

in England. This further complicated the issues.

Ultimately, the trial court convicted the respondent

on 1st March, 1999, i.e., twenty years after the

alleged commission of the crime.

5.   We may now notice some of the undisputed facts,

     which are necessary for appreciation of a peculiar

     situation in which the alleged offence is said to have

     been committed. The respondent belongs to a village

     called Turkpur, District Sonepat, Haryana.         He

     obtained his MBBS degree from Punjab University,

     Rohtak in 1973 and M.S. Degree in (Orthopedic)

     from A.I.I.M.S., New Delhi in December, 1978. He

     got himself registered with the Punjab Medical


6.   Jagdish Singh Lochab (PW-48) a native of Punjab

     had migrated to England in 1962. He was settled

     there with his family viz. wife Smt. Chandermukhi

     (PWUK-1), three daughters namely Namita, Amita

     Lochab (PWUK-2) and Shiela (PWUK-3) and two

     sons.   Namita born in India in May, 1956 had

     acquired British citizenship. During 1978, Namita

     was working as accounts trainee with the British

     Broadcasting Corporation (BBC), London. In July-

    August, 1978, Jagdish Singh Lochab (PW-48) visited

     India to find suitable boy for marriage with his

     daughter Namita. They found the respondent to be

     a suitable match for their daughter. After making

     the selection of the proposed groom, Namita was

     called from London. The engagement ceremony was

     held between the respondent and Namita on 31st

     August, 1978 at village Turkpur followed by a

     marriage ceremony according to Hindu rites and

     customs at Delhi on 5th September, 1978. However,

     as per the understanding of the parents of Namita,

     the said marriage was to be treated as engagement

     only as there would have to be a registered marriage

     in London subsequently. Therefore, the marriage

     was not consummated and Namita along with her

     parents returned to London on the night of 5th

     September, 1978.

7.   As   arranged,   the   respondent   reached   London

     on 27th February, 1979. He started living with his

     in-laws   at 22, Friars Way, Action, W3, London. At

    the same time, he pursued his medical studies. He

     got himself registered as a post graduate student at

     Royal National Institute of Orthopedics, London on

     12th March, 1979.   Jagdish Singh Lochab (PW-48)

     purchased a house         (No. 312, Horn Lane Act,

     London) in the joint name of Namita and respondent

     valued 20,000 UK Pounds. He paid 10,000 UK

     Pounds, the remaining price was to be paid in

     installments. A joint bank account No.91053728

     was also opened in the name of Namita and the

     respondent at Midland Bank, Acton High Street,

     London and two cheque books, one each in the

     name of Namita and the respondent were issued by

     the bank.

8.   On 5th or 6th April, 1979, 18th birthday party of

     Sheila, younger sister of Namita was celebrated

     where all the friends (boys & girls) of the three

     daughters of PW-48 including UK-23 Philips David

     Abbey, a colleague of Namita were invited in the

     party. Mr. and Mrs. Lochab left the house at about

7.30 pm and returned at       about 1.30 a.m. in the

morning. On their return the accused started

abusing the whole family, he was aggressive and

alleged Namita to be characterless, as she had been

dancing and mixing with boys. Namita was upset

with the behaviour of the accused and was crying.

She told her mother that it did not seem possible for

her to spend the rest of her life with the accused.

The next morning the whole family sat together

along with the accused and discussed about the

incident of the previous night. When the accused

was   told   that   Namita   wants   to   cancel   the

engagement, he apologized for his conduct in the

previous night. During the night of 10th April,1979

at 1.30 a.m. Namita wrote a letter (exhibit CW-13,

Volume-9, page 286) to the accused addressing him

as Mahendra, suggesting that wedding should be

cancelled in the month of May, until both of them

were ready for the same. She advised him to get

some self confidence to prove himself responsible

enough to look after a wife and a home. In reply, the

    accused wrote a letter, to Namita addressing her as

     Nita, which is exhibit CW-14 (Vol.9, page 290).

9.   On 26th May. 1979, the marriage between Mahender

     and Namita was registered at the Office of the

     Registrar of Marriages, London. It was followed by a

     reception   the   same   evening   at   the    Phoenix

     Restaurant, London. A honeymoon trip for the

     newly wedded couple was arranged for five days

     commencing    from   27th   May,   1979   to   certain

     European    countries    through    Cosmos      Tours,

     London.     In the morning of 27th May, 1979,

     Mahender and Namita left for the honeymoon trip.

     They were seen off by her family at Victoria Railway

     Station, London. They carried two suit cases, one of

     red colour belonging to Namita and the other of

     brown colour belonging to Mahender containing

     their clothes and other articles.       The group of

     tourists including Namita and the respondent

     reached Brussels at about 6.30 p.m. the same

     evening. All the tourists in the group stayed at the

     fourth floor of Hotel Arenberg, Brussels. Mahender

      and Namita checked into room no. 415. After some

      time they went for a short sight seeing tour

      `Brussels by Night'. They returned to the hotel at

      about 11.00 p.m. and retired to their room.

10.   Hereafter, there are two versions, one according to

      the   appellant   and   another   according   to   the

      respondent.   The prosecution version is that the

      respondent had strangled his wife Namita to death

      in their hotel room. He had then proceeded to

      dismember and mutilate parts of her body which

      were subsequently disposed of in the rubbish

      container and the lake. The respondent entered UK

      on the same day, i.e., 29th May, 1979 and withdrew

      an amount of 200 UK Pounds from the joint

      account he had with his wife bearing Account No.

      91053728 from the Midland Bank, London. In the

      afternoon                   of 30th May, 1979, after

      withdrawing the money from the bank, he went to

      the house of his in-laws.     He was carrying two

suitcases.     He, however, could not give any

satisfactory explanation to his in-laws about the

whereabouts of his wife Namita. He rather falsely

stated to them that she had abandoned him at

Brussels on the morning of 28th May, 1979, carrying

away her clothes and money.           The respondent

wanted to get away from the house as soon as

possible without giving any explanation as to what

happened in Brussels. He was, however, restrained

by the family members with the assistance of a

neighbour.   Thereafter,   Namita's   father   Jagdish

Singh Lochab (PW-48) took the respondent to Acton

police station to lodge a missing person's report

about the disappearance of Namita. On the way

back from the police station along with his father-

in-law, the respondent escaped by jumping onto a

running bus.    Thereafter, he stayed in the YMCA,

London without disclosing his identity/particulars.

He left for India via Frankfurt, West Germany and

reached Delhi                 on 6 th June, 1979. He

afterwards, remained underground and absconding

     and could not be traced in spite of various efforts

      until 9th May, 1983. He was hiding in a village in

      District Lalitpur, U.P., where he had taken up the

      practice of general medicine under the fake name of

      Dr. M. Singh.

11.   We have heard the learned counsel for the parties.

      Very elaborate submissions have been made by

      Mr. P.P. Malhotra, learned Additional Solicitor

      General for the appellants and Mr. Siddharth

      Aggarwal for the respondent.

12.    Mr. Malhotra has submitted on behalf of the

      appellant that the High Court has committed a

      grave error in reversing the well reasoned judgment

      recorded by the trial court. He further submits that

      the trial court had meticulously examined the entire

      sequence of events. The evidence of the witnesses

      relating to various facts and circumstances was

      discussed under various heads in order to see if the

      chain of circumstances for bringing home guilt for

offences with which the accused had been charged

was complete or not. The trial court discussed the

facts which were sought to be proved by the

prosecution under the following heads :-

"A.   Native place of the accused and his
      educational qualifications.

B.    Marriage of the accused, his departure for
      U.K. his stay at the house of his in-laws
      and registration of the marriage there;

C.    Birthday party at the house of his in-
      laws; his conduct at and after the
      birthday party; his relations with Namita
      before and after the Birthday party,
      letters exchanged between the accused
      and Namita and the apology, if any,
      tendered by the accused with regard to
      his conduct;

D.    Arrangement for conducted tour to
      Brussels; departure from London on the
      morning of 27.5.79 and reaching
      Brussels in the evening; sight-seeing tour
      of Brussels by the accused and Namita
      on the evening of 27.5.79 and return to
      the Hotel;

E.    Visit of the tour guide, Richard Anthony
      Cushnie (PWUK-12) in the morning of
      28.5.79 when the accused told him about
      his decision to stay back; the manner in
      which the accused dealt with the Pantry

    clerk, Benselin Myriam (PWBG-24) who
     wanted to enter his room to check the
     refrigerator; visit of the chamber maid,
     Ms. Mujinga Maudi (PWBG-22) for the
     purpose of cleaning the room and her
     observations about the condition of the
     accused at that time; the condition in
     which the room of the Hotel was found
     and request of the accused for his stay in
     the hotel for extra night; and what these
     point out to ?

F.   The arrival of the accused in London
     without Namita; his explanation given to
     the parents of Namita regarding Namita's
     disappearance from Belgium; his conduct
     at the time accompanying father of
     Namita to Acton P.S. to report about
     Namita's disappearance and his alleged
     escape by jumping into a running bus;
     and if these circumstances are of any
     effect ?

G.   Recovery of parts of human body on the
     morning of 29.5.79 and subsequent
     recovery of torso from the lake on 2.8.79.
H.   Collection of evidence pertaining to the
     crime from room No. 415 of Hotel
     Arenberg, Brussels and reports of the
     forensic tests connecting the recovery of
     the murder.

I.   Report of the post mortem in respect of
     the parts of the human body recovered
     on 29.5.79 and other evidence showing
     that the dismembered parts were that of

J.   Evidence connecting the torso to be of

     K.      Evidence collected from the suitcase
              allegedly brought by the accused to
              London establishing that the blood in the
              suitcase was of Namita.

      L.      Other evidence in the form of recovery of
              clothes and shoes of Namita along with
              dismembered human body.

      M.      Absconding of the accused and the efforts
              made by the police in apprehending him
              vis-`-vis explanation given by the
              accused in that regard.

      N.      Reference    received  from   Belgium
              Government for extradition of the
              accused and subsequent abandonment of
              the request and sanction granted by
              Central Government for prosecution of
              the accused in India.

      O.      Other facts referred to on behalf of the
              accused    breaking     the  chain    in
              circumstantial evidence."

13.   The learned Additional Solicitor General then drew

      our attention to the findings of the trial court on

      each point. He drew our particular attention to

      Point     `C'   relating   to   the   resentment   of   the

      respondent to the friendly behaviour of Namita

      towards the other men in particular PWUK-23 at

      the birthday party. These facts, according to Mr.

      Malhotra, were found to be proved by the trial court

     which provided strong motive to the respondent for

      committing the murder of his wife. According to Mr.

      Malhotra, this finding has been wrongly reversed by

      the High Court. Point `D' related to the behaviour of

      respondent and his wife Namita in the coach. Mr.

      Malhotra laid special emphasis on Point `E' which

      related to the respondent's behaviour as observed

      by   PWUK-12,    PWBG-22,     and    PWBG-24.     He

      submitted that the trial court had elaborately

      considered the evidence of these witnesses and

      rightly   concluded   that   the    respondent    had

      murdered his wife by strangulation and thereafter

      he had mutilated her body by disjointing the limbs

      from the joints. The conclusion of the High Court,

      according to him, is improbable.

14.   In summing up Mr. Malhotra submitted that there

      is conclusive evidence to prove that it was the

      respondent who committed the murder of his wife.

      Having committed the murder he discarded the

      body parts as narrated above. Mr. Malhotra had

placed strong reliance on the cumulative effect of

the circumstances established on the record. He

relied on the following facts: -

(1)      Namita was last seen alive in the company

         of the respondent on the night intervening

         27/28th May,1979

(2)      The respondent floated the false defence

         about the Namita having left him in the

         morning        of 28th May, 1979.

(3)      He did not make any complaint to the

         Belgium Police.

(4)      He did not inform either the tour guide or

         any staff member of the hotel about his wife

         having voluntarily left.

(5)      He made no efforts to trace his wife for two


(6)      He deliberately stayed in the hotel on 28th

         and left for U.K. on the 29th May, 1979. At

         the     same    time   the   body   parts    were

         discovered in the rubbish container which

      is only two hundred meters away from the


(7)    The body parts recovered from the rubbish

       bin have been identified to be those of

       Namita by reliable expert evidence.

(8)    The cloth recovered in the rubbish bin had

       been identified to be those of Namita.

(9)    The blood group of the body stains found in

       the bathroom matches the blood group of


(10)   The palm prints of the palm recovered from

       the rubbish bin match the palm print of


(11)   The torso recovered has been identified to

       be that of Namita from Vergote lake which

       is only seventeen minutes walking from the


(12)   Therefore, there is scientific evidence to

       establish the identity of the victim to be

       that of Namita.

     (13)      He ran away from the father of the

                deceased at the first opportunity that he


      (14)      He remained absconding and hiding for a

                period of four years till he was discovered.

15.   On the basis of the aforesaid, learned Additional

      Solicitor General submitted that the judgment of the

      High Court deserves to be set aside and judgment of

      the trial court ought to be restored.

16.   Mr. Aggarwal, on the other hand submitted that -

      i)     The   prosecution   has    miserably      failed   to

             establish any motive for the alleged crime.

             There is no material even to indicate what

             weapon was used by the respondent in the

             commission of the crime. He emphasised that

             no weapon of offence was either recovered or

             produced during the trial.

      ii)    The   prosecution   case     is   based   only     on

             hypothesis. First such hypothesis is based on

      the opinion of the doctor, who conducted the

       postmortem examination. This doctor had

       stated    that    it   was        evident    that    the

       dismemberment of the body parts of the victim

       was committed by a professional doctor or a

       butcher, who knows the anatomy of the

       human body. This could be done with the aid

       of certain surgical instruments which could

       have been carried by the respondent with him

       as he was an Orthopedic Surgeon.

iii)   The other possibility floated on behalf of the

       prosecution was that as the body parts had

       been simply disjointed at the various joints, it

       could be done by using a fork and a butter

       knife,   which    would      be    available    to   the

       respondent in the hotel room.

iv)    Mr. Aggarwal had pointed out that it would

       have     been    virtually    impossible       for   the

       respondent       to    have        carried     surgical

       instruments with him through international

       borders without the same coming to the notice

      of   the   customs      authorities.   Giving   the

       sequence      of events, as    projected   by   the

       prosecution, it would have been impossible for

       the respondent to have procured the surgical

       instruments within the city of Brussels.

v)     Learned counsel had also pointed out the

       impossibility of mutilation of the body simply

       by using a butter knife and a fork.

vi)    Mr. Aggarwal had next pointed out that if the

       murder     had   been    committed     during   the

       intervening night of 27th/28th May, 1979 in

       room no. 415, i.e., fourth floor of the hotel,

       where many other guests of the tour group

       were staying, at-least, someone or the other of

       the guests should have heard the screams of

       the victim.    The dismemberment of the body

       must have caused some tangible noise which

       could easily have been heard by any passer by.

vii)   He had next submitted that the prosecution

       has not given any clear version as to how the

       body parts were removed from the hotel to the

       different locations where they were discovered.

        The prosecution has failed to produce any

        material objects to demonstrate how the body

        parts were shifted from the hotel room to the

        rubbish    container.    The     prosecution        had

        suggested that the body parts had been

        removed in the red suitcase (Ex.CW/26).

viii)   Mr. Aggarwal had pointed out that not a single

        witness was produced by the prosecution who

        might have seen the respondent carrying the

        red suitcase from the hotel to the container

        lying at a distance of about two hundred

        meters from the hotel or to Vergote canal/lake.

ix)     Even otherwise, he had pointed out that the

        body parts would not have fitted in the suit

        case.   The   length     of    the   suitcase       was

        measured      67.5     cms.    while    the        torso

        measured 69 cms. He had also pointed out

        that the torso was recovered more than two

        months after the incident which would indicate

        that it was thrown into the lake by someone

     much later than 28th May, 1979 or a few days

      prior to 2nd August, 1979.            If the torso had

      been      thrown     in        the     lake    on   or

      around 28th May, 1979, it could not have

      remained submerged for two months and

      would have appeared on the water surface

      within a few days of its disposal.

x)    It was further pointed out by Mr. Aggarwal

      that other parts of the body remained untraced

      even till the time of trial.

xi)   With regard to the respondent's return to

      England, the learned counsel had pointed out

      that if the intention of the respondent was to

      escape,     he     would        not     have    drawn

      only 200 pounds from the joint account, which

      in fact had a balance of over 800 pounds. The

      amount withdrawn by the respondent would

      not have been sufficient even to buy a ticket

      back to India.       He had pointed out that

      Namita's air ticket from London to Delhi

       (Ex.CW/3)         had     been       purchased

        for 350 pounds.

xii)    Learned counsel then pointed out that the

        prosecution theory about the respondent's

        return to his in-laws' home to collect his

        certificates is quite implausible in as much as

        duplicate certificates are easily available (and

        were in fact obtained by the respondent).

xiii)   Making a reference to the material on the

        record, the counsel had pointed out that the

        certificates were in fact not found inside the

        respondent's suitcase at all in the inventory of

        the contents of suitcases drawn up in Belgium.

xiv)    It was the case of the defence that even

        according to the parents of Namita, respondent

        had returned to their home to pick up his

        belongings.   This, according to the learned

        counsel, would not be the rationale behaviour

        of a guilty individual, who would not have

        risked returning to their house for the sake of

        his clothes. In fact according to Mr. Aggarwal,

      respondent had no need for any clothes.       He

       had a suitcase full of clothes with him in

       Belgium.    He in fact returned to his in-laws

       home for discussion/confrontation with the

       parents of Namita and to decide his future

       course of action.

xv)    On his return, he found the behaviour of his

       mother in law very hostile. This is clear from

       the evidence of PWUK-2 which indicates that

       the family tried to search him. He was in the

       house for more than three hours having

       arrived at 2 p.m. The missing persons report

       lodged by PW-48 is timed at 5.30 p.m.

xvi)   The respondent had no intention according to

       Mr. Aggarwal, to escape. He submits that the

       entire incident within the in-laws' house has

       been fabricated to suit the prosecution version,

       which is belied by the inconsistencies in the

       narration of events by the family members. He

       made references to relevant portions of the

       statement   recorded   by   PWUK-1,     PWUK-2,

PWUK-3 (on commission) and PW-48, in the

trial   court.     Similarly,   according      to

Mr. Aggarwal, the prosecution version is belied

by the conduct of the respondent at the Acton

Police Station where the missing person's

report was lodged.    The respondent had duly

informed the police officer of the fact that

Namita had walked out on him at 6.00 a.m.

on 28th May, 1979. On this basis, the missing

person's report was lodged by PW-48. The

respondent's      explanation   regarding     the

circumstances in which Namita left him was

made known to PWUK-17, Nicolas Linfoot,

Sergeant Officer, Police Station, Acton. He had

also given the evidence on commission which

was available at the trial. In his statement on

commission,      PWUK-17   disclosed   that   the

respondent was nervous and agitated during

the interview. He specifically returned to the

police station after they had walked out of the

station to complain that he felt threatened by

       his in-laws and expecting trouble from them.

xvii)   Mr. Aggarwal then pointed out various events

        to    show     that     the    respondent      was    never

        intending       to      either    hide    or     abscond.

        Undoubtedly on 28th May, 1979, he jumped on

        a running bus to get away from his father-in-

        law as he was apprehensive of an altercation

        with    him.      It    is     also   pointed    out       by

        Mr. Aggarwal that respondent had already

        informed PW-48 that he would prefer to stay at

        the     YMCA,          where     he   actually        stayed

        till 30th May, 1979.           If the respondent had a

        guilt conscience and wanted to abscond, there

        was no reason to return to England. He could

        have let to a safe place directly from Belgium.

xviii) With regard to the letter written to the Prime

        Minister, he points out that these letters and

        telegrams to authorities were sent as he

        apprehended threat to his life and false

        implications. He, therefore, sought protection

        of    the    authorities.      Respondent       had       even

      produced witnesses from the village where he

       was practicing medicine, who stated that he

       had clearly disclosed his full name. He stayed

       in the village Bansi for three-four years.

xix)   Mr. Aggarwal, therefore, submits that the

       appellant did not want to reside at Turkpur to

       avoid   the     social    stigma.   He   feared    of

       retribution and false implication. His fears

       were not without any basis.         The trial court

       record shows that on 14th October, 1992, two

       years after his second marriage, an attempt

       was made on his life while he was in his clinic

       at Kharkhoda.

xx)    Mr. Aggarwal then pointed out that while

       recording      evidence    on   commission,       the

       Belgium authorities did not comply with the

       provisions of the Criminal Procedure Code

       (Cr.P.C.), 1973 and the Indian Evidence Act,

       1872.   This    was in spite        of the   specific

       directions given by the trial court to both the

       parties to carry the relevant provisions of law

          with them to ensure compliance with the

           Indian   law.    In    fact   the    requisition    for

           commission      sent    to    the    Belgium    Court

           specifically    requested     that   the   procedure

           prescribed under Sections 135-159 of the

           Indian Evidence Act and that of Section 162 of

           Cr.P.C. be followed.

17.   Learned counsel also pointed out to numerous

inconsistencies and contradictions in the evidence of the

prosecution witnesses and submitted that the High Court

has rightly concluded that the prosecution has failed to

establish the guilt of the respondent beyond reasonable


18.We have examined the submissions made by the

   learned counsel for the parties, particularly keeping in

   view the gruesome nature of the crime and the

   complexities presented in the investigation, as also at

   the trial of this particular case.

19. Undoubtedly, this case demonstrates the actions of a

   depraved soul. The manner in which the crime has

   been committed in this case, demonstrates the depths

   to which the human spirit/soul can sink.               But no

   matter how diabolical the crime, the burden remains

   on the prosecution to prove the guilt of the accused.

   Given the tendency of human beings to become

   emotional and subjective when faced with crimes of

   depravity, the Courts have to be extra cautious not to

   be swayed by strong sentiments of repulsion and

   disgust. It is in such cases that the Court has to be

   on its guard and to ensure that the conclusion

   reached by it are not influenced by emotion, but are

   based on the evidence produced in the Court.

   Suspicion no matter how strong can not, and should

   not   be   permitted   to,   take   the   place   of    proof.

   Therefore, in such cases, the Courts are to ensure a

   cautious and balanced appraisal of the intrinsic value

   of the evidence produced in Court.

             20. In our opinion, the High Court has examined the

                    entire         evidence      dispassionately     and        with

                    circumspection. It has noticed that the evidence

                    produced by the prosecution in this case is purely

                    circumstantial.       The     principles    on   which       the

                    circumstantial evidence is to be evaluated have been

                    stated and reiterated by this Court in numerous

                    judgments.        We may notice here the observations

                    made by this Court, in the case of Hanumant Govind

                    Nargundkar Vs. State of M.P.1              on the manner in

                    which circumstantial evidence needs to be evaluated.

                    In       the     aforesaid     judgment,       Mahajan,       J.

                    speaking for the Court stated the principle which

                    reads           thus:-

                         "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."
    1952 SCR 1091
              The aforesaid proposition of law was restated in the case

               of Naseem Ahmed Vs. Delhi Admn2, by Chandrachud J.

               as follows:

                       "This is a case of circumstantial evidence and
                       it is therefore necessary to find whether the
                       circumstances on which prosecution relies are
                       capable of supporting the sole inference that
                       the appellant is guilty of the crime of which he
                       is charged. The circumstances, in the first
                       place, have to be established by the
                       prosecution by clear and cogent evidence and
                       those circumstances must not be consistent
                       with the innocence of the accused. For
                       determining     whether     the    circumstances
                       established on the evidence raise but one
                       inference consistent with the guilt of the
                       accused, regard must be had to the totality of
                       the circumstances. Individual circumstances
                       considered in isolation and divorced from the
                       context of the over-all picture emerging from a
                       consideration of the diverse circumstances and
                       their conjoint effect may by themselves appear
                       innocuous. It is only when the various
                       circumstances are considered conjointly that it
                       becomes      possible    to    understand    and
                       appreciate their true effect."

               21.     We are of the opinion that the High Court was fully

               alive to the aforesaid principles and has assessed the

               evidence in the correct perspective. Upon consideration

               of the factual and the legal position, the High Court

    (1974) 3 SCC 668
summed up the final conclusion.              We are unable to

accept      the   submission     of   Mr.   Malhotra    that      the

conclusions reached by the High Court are not plausible

conclusions.      Thereafter, the High Court systematically

and        chronologically     examined          the   series      of

incidents/circumstances relied upon by the prosecution

to establish the guilt of the respondent.

22.   It    would    be      appropriate    to     discuss      these

incidents/circumstances under different headings.


23.   Upon consideration of the evidence on record, the

High Court concluded as follows:-

      "Bearing in mind the legal position emerging
      out of the said authorities and having regard
      to the totality of the facts and circumstances
      which can be said to have been established on
      record, it is not possible to infer any motive on
      the part of the appellant what to talk of a
      motive so strong to commit the crime."

In assessing the evidence, the High Court was aware of

the legal principles that absence of motive may not

necessarily be fatal to the prosecution. Where the case of

               the prosecution has been proved beyond reasonable

                doubt on the basis of the material produced before the

                Court, the motive loses its significance.        But in cases

                based on circumstantial evidence, motive for committing

                the       crime   assumes     great   importance.    In        such

                circumstances, absence of motive would put the Court on

                its guard to scrutinize the evidence very closely to ensure

                that suspicion, emotion or conjecture do not take the

                place of proof (See Surinder Pal Jain Vs. Delhi

                Administration3         and   Tarseem    Kumar      Vs.    Delhi


                We may also notice here the observations in Subedar

                Tewari Vs. State of U.P.5 wherein it has been observed

                that -

                          "The evidence regarding existence of motive
                          which operates in the mind of an assassin is
                          very often than (sic) not within the reach of
                          others. The motive may not even be known to
                          the victim of the crime. The motive may be
                          known to the assassin and no one else may
                          know what gave birth to the evil thought in the
                          mind of the assassin."

  1993 Supp (3) SCC 681
  1994 Supp (3) SCC 367
  1989 Supp (1) SCC 91
                 Again reiterating the role played by motive in deciding as

                  to whether the prosecution has proved the case beyond

                  reasonable doubt against an accused, this Court in the

                  case of Suresh Chandra Bahari Vs. State of Bihar6 held

                  as under:-

                           "Sometimes motive plays an important role
                           and become a compelling force to commit a
                           crime and therefore motive behind the crime is
                           a relevant factor for which evidence may be
                           adduced.     A motive is something which
                           prompts a person to form an opinion or
                           intention to do certain illegal act or even a
                           legal act with illegal means with a view to
                           achieve that intention. In a case where there
                           is motive, it affords added support to the
                           finding of the Court that the accused was
                           guilty for the offence charged with. But the
                           evidence bearing on the guilt of the accused
                           nonetheless     becomes     untrustworthy   or
                           unreliable because most often it is only the
                           perpetrator of the crime alone who knows as to
                           what circumstances prompted him to adopt a
                           certain course of action leading to the
                           commission of the crime."

                  In our opinion, the conclusion recorded by the High

                  Court is in accordance with the aforesaid principles.

                  Merely because the respondent objected to the behaviour

                  of Namita towards her male friends at the birthday party

                  of her sister Shiela would not be sufficient to hold that
    1995 Supp (1) SCC 80
the appellant had the necessary motive to kill her.      It is

inconceivable that the respondent would have married

Namita only for the purpose of committing her murder,

that too on the very first night of their honeymoon. Both

the trial court and the High Court, in our opinion, have

correctly recorded the conclusion that it was in fact in

the interest of the respondent that Namita had remained

alive. The success of his very objective to remain

permanently    in   England   was     dependent    on     the

continuance of his marriage for at least another year.

24.   We are also not much impressed by the submission

of Mr. Malhotra that the simmering resentment which

was caused by Namita's refusal to consummate the

marriage would be sufficient to impel the respondent to

commit her murder. In our opinion, the High Court has

correctly concluded that the two letters Ext.CW-13 and

Ex.CW-14 exchanged between Namita and Mahender

would tend to show that respondent was in fact trying to

make      amends      after     the     birthday        party

on 5th /6th April, 1979. There was no untoward incident

thereafter. It is accepted by all that the marriage was

duly registered on 26th May, 1979 and that the couple

voluntarily left for the honeymoon.

25. The trial court upon examination of the entire

evidence had in fact concluded that something had gone

amiss in the hotel room occupied by Mahender and

Namita on the night of 27th/28th May, 1979. If that be so,

the High Court rightly concludes, that this fact alone

would contradict the theory of respondent having any

pre-meditated strategy or design for committing the

murder of his wife. The High Court correctly concluded

that "it is highly improbable to comprehend that

respondent had a predetermined mind or motive to cause

the death of Namita on the honeymoon night itself at the

first available opportunity of being in the company of the

deceased   in   a   closed   room   as   suggested   by   the

prosecution. Had the attitude of the parties been as

suggested by the prosecution, they would not have

agreed to a marriage followed by a honeymoon trip

outside London." The High Court also noticed that there

was nothing to suggest that Namita or her family

members had apprehended any harm or threat to life of

Namita at any stage till the couple left for the honeymoon

on morning of 27th May, 1979. The High Court found it

impossible to accept the prosecution theory that the

respondent had married the deceased only with a view to

do way with her to take revenge for her appalling

behaviour at Shiela's birthday party. Had the respondent

been so resentful, there was no question of the marriage

being solemanised.


26.   On this issue, the High Court has merely recorded

that the respondent has not disputed that Namita was

with him in the room throughout the night. This position

is also maintained by Mr. Aggarwal before us. The

respondent had, however, claimed that Namita had left

him at 6.35 a.m., in the morning of 28th May, 1979. The

High Court upon examination of the evidence of the

Manager of the Hotel concluded that it was not possible

to hold that Namita was seen alive by anyone in the

morning of 28th May, 1979. The High Court, therefore,

observed that it was for the respondent to explain about

her disappearance.

27.   The        explanation     given      by     the   respondent

consistently from the beginning is that Namita had left

him voluntarily early in the morning of 28th May, 1979.

It is also his case that she married him only under

pressure from her parents. She had purchased a new

suitcase in which she packed most of her clothes

immediately upon returned from the "Brussels by Night"

tour. The red suitcase with which she had traveled from

London      to    Belgium      was   left   with   the   respondent

containing some of her clothes. This suitcase even

though had a blood stain was carried back to the house

of Namita's parents by the respondent himself. It seems

inconceivable that a person who has committed the

murder of his wife and has used the aforesaid suit case

for storing and carrying the body parts would bring it

back to England risking his own safety. The respondent

also narrated before the police that his wife had left him

voluntarily on the morning of 28th May, 1979. This fact

was further reiterated by him in the letter to the Prime

Minister of India which runs as follows :-

      ".....After seeing these historical places we
      reached to our room. We took our bath and
      she gave me half currency my passport and
      ticket to me. She asked me to go out for a
      while and then came with new suitcase. She
      accommodated the maximum articles possible
      in that and left the rest in the suitcase which
      she took with her from her house. Then she
      told me that dear Mahendra I want to tell you
      something very important and that is "I have
      married you just for the sake of my parents for
      which they were pressing me. Now I will think
      about my future and you also should think
      about your own future. Do not object me for
      anything" saying this she went out and asked
      me not to follow her. I waited till morning
      when the Cosmos Coach guide came to room
      and asked to get ready for the further tour but
      I told him that I am waiting for my wife
      because she has gone out."

28.   In our opinion, the last seen evidence would not

necessarily mean that the respondent had killed his wife.

Given the previous attitude of Namita, it is quite possible

that she had walked out on her husband.


29.   The most important circumstance relied upon by

the prosecution relates to the state of affairs which

existed in Room No.415 of Hotel Arenberg and the

behaviour pattern exhibited by the respondent on the

morning of 28th May, 1979. This was sought to be proved

by the evidence given by three witnesses, namely,

PWUK-12 Richard Anthony Cushnie, PWBG-22 Mujinga

Maudi and PWBG-24 - Benselin Myriam. The High Court

notices that the prosecution had sought to project

through these witnesses a certain state of affairs to prove

that the respondent had a guilty mind.

30.   The High Court rejected the evidence of the tour

guide (PWUL-12) as being inconsistent. The High Court

notices that this witness had gone up to room no.415 to

inform the couple that the tour party was ready to leave.

He knocked on the door. It was half opened by the

respondent. He found the respondent was perspiring but

at the same time assumed his behaviour to be quite

normal or non exceptional. The High Court also notices

that this witness had prepared two reports Ext.CW42/A

and CW42/B after the termination of the tour. None of

the two reports make any mention about the abnormal

behaviour of the respondent. These reports rather

indicate that the witnesses must have been in a hurry

when they visited room no.415 and could not have talked

to the respondent for more than a couple of minutes. In

fact, in one of the reports, this witness mentions the fact

that the father-in-law of the respondent had told him

that Namita had abandoned the respondent on the

morning of 28th May, 1979. In our opinion, the High

Court was justified in concluding that this statement

would support the defence plea.

31.     We may also notice that this witness in his cross

examination clearly stated that 1979 was his first year as

a tour courier. He accepted that portion of the report

(marked 8) was written by him. The aforesaid portion

contained the words "It could be that the wife left very

early    and   the   arranged   marriage   giving   her    the

opportunity. It is conceivable that the girl left early in the

morning. The arranged marriage having given her

opportunity to leave home and make a life on her own

and therefore satisfy the desires of both parties." He also

stated in the cross examination that on his visit to room

no. 415, he could not have remained with the respondent

much more than 2 minutes. He goes on to say that "at

the time the coach was waiting, we were anxious to be

away. I did not enter the room at any stage during that

period of 2 minutes. I did not try and peep inside the

room." Such being the state of affairs, we are unable to

accept the submission of Mr. Malhotra that the High

Court wrongly discarded the evidence of this witness.

32.   In rejecting the evidence of PWBG-22 Majinga

Maudi, the High Court noticed that this witness was

examined by the police on a number of occasions, but

she could not even give the correct room number. She

actually stated that she visited room no.410. The High

Court also concluded that from her evidence it becomes

apparent that the respondent did not even put a latch on

the door nor did he take any extra precaution to keep the

room closed. This witness was able to enter the room

without   knocking.    Mr.    Malhotra,    however,     laid

considerable emphasis on the part of the statement that

when she entered the room she saw the respondent

sitting on the bed with hands on his face and she

thought him to be sick. This witness also stated that she

wanted to open the curtains of the window but the

respondent did not allow her to do so. According to

Mr. Malhotra, this would clearly indicate that the

respondent   was    deeply   distressed   and   disturbed.

Mr. Malhotra also emphatically reiterated that this

witness proved that the bathroom was totally soaked with

water and there were wet towels on the floor of the

bathroom. When she was cleaning the room, the

respondent did not leave her for a second. The High

Court, however, notices that this witness did not find any

incriminating article like the body or body parts either in

the room or in the bathroom, nor she found even a trace

of blood on the carpet or on the wall. This witness had

herself stated that the respondent had left the room

unattended knowing perfectly well that this witness could

enter the room in his absence. We do not accept the

submission    of   Mr.   Malhotra   that   the   cause     of

respondent's distress was the murder that he had

committed. It could equally be the distress of a husband

whose wife deserted him on the honeymoon. In our

opinion, the High Court has correctly assessed the

evidentiary value of the statement of this witness.

33.   The other witness relied upon by the prosecution

was PWBG-24 who wanted to enter the room in order to

take the inventory of the mini bar. He was, however, not

permitted to do so by the respondent. The High Court

notices that the earlier witness had actually stated that

he had come inside the room and he had talked to her.

34.   From the above, it becomes apparent that it was

only on a very careful consideration of the evidence of all

the witnesses, the High Court concluded that the

behaviour of the respondent cannot be said to be

consistent only with the guilt of the respondent. In our

opinion, the High Court correctly notices that no

explanation was forth coming as to where the body or

dismembered body parts could have been concealed by

the         respondent      throughout        the        night

of 27th/28th May,1979 as well as the morning and the

afternoon of 28th May, 1979. The High Court notices that

it is the case of the prosecution that the body parts were

disposed of after the evening of 28th May, 1979. The

suggestion of the prosecution that the body might have

been kept either in the cupboard or under the bed was

correctly held to be conjectural.


35.   The     next   circumstance   relied   upon   by    the

prosecution to connect the respondent with crime is the

recovery of body parts allegedly of Namita viz. head,

severed upper and lower limbs minus thigh portion from

a refuge container lying at Rue De Loxum in the morning

of 29th May, 1979 and that of torso from Vergote Lake,

Brussels on 2nd August, 1979. Certain pieces of clothings

and a shoe were also recovered form the rubbish

container which according to the prosecution had also

belonged to Namita. The body parts were recovered by a

rag picker namely Verbeleen Marcel, PWBG-6.        He had

been looking for some lead or copper in the rubbish

container for selling. Instead, he found a packet which

was wrapped with a black pullover containing an arm in

the shape of a hand without fingers, two arms cut into

four pieces. On seeing such a sight, he became nervous

and called the police.     Responding to his call, two

policemen arrived.    PWBG-13, Van Eesbeek Pierre, a

police officer of Brussels on reaching the site looked into

the waste container and found a pair of legs and the feet.

These remnants were wrapped in chiffon and inside a

plastic bag. The other witness of the recovery is PWBG-

21, Vindevogel Rene.      He has stated that he had

accompanied PWBG-13, Van Eesbeek Pierre. They had

found in the container, inside a cardboard box, two

pieces of arms and on further search found a red cloth

wrapped packet with plastic and when he opened it, a

head rolled down. According to him, his colleague found

one of the two legs and the feet in other side of the

container, also packed in a red fabric. The High Court,

therefore, concluded that only one piece of clothing found

near the body parts was a black pullover and some red

fabric, which might have been used for wrapping the

body parts.   These witnesses did not speak about the

recovery of any other clothing or shoes as is sought to be

proved through PWBG-8 Nelissen Urbain, PWBG-14

Etienne Martin, PWBG-25, Lecerf Jacques, PWBG-27

Pissoort Jean and PWBG-28 Dooms Jeanean.                It is

noticed by the High Court that none of these witnesses

except PWBG-28 Dooms Jeanean speaks about the

recovery of any clothing or shoe from the site of recovery.

In fact PWBG-28 Dooms Jeanean could not speak with

certainty as to what garments or shoes were discovered

from the container. The High Court further notices that

the details of clothing and shoes do not find mention in

the report of the police dated 30th May, 1979. The report

simply mentions that there were several pieces of ladies'

clothing which were seized and would be described in a

special report.   It appears that no contemporaneous

report of recovery of these clothings was prepared. The

report was subsequently prepared on 8th June, 1979 in

the form of an inventory of items found on 29th May,

1979.   These for the first time specified a pink brown

cardigan covering the legs, a black pullover and red

fabric which are described by the witnesses. The High

Court also notices that the police had already collected

and seized various articles and things from the house of

PW-48, Mr. Lochab in London on 5th June, 1979, 6th

June, 1979            and 7th June, 1979.

36.   In our opinion, the High Court has reached the

appropriate conclusion that the possibility of these

garments and articles having been planted by the police

by obtaining the same from the house of Namita with the

object of fixing the identity of the body parts belonging to

Namita by means of the clothes can not be ruled out. It

is noteworthy that no contemporaneous recovery memo

was prepared by the police on 29th May, 1979 itself.

There was omission of the details of the allegedly

recovered clothes in the statement of the witnesses.

Articles had already been seized from the house of

Namita       on   three   consecutive     days   5th,    6th

and 7th June, 1979. The Special Report containing the

inventory of the clothes is dated 8th June, 1979. It is in

this report that clothes are mentioned for the first time.

We are unable to accept that even in the face of such

material, the conclusion reached by the High Court is not


37.   We may also notice that prosecution had allegedly

recovered the clothes Namita had taken on the trip.

Namita's     wedding dress was stated to have           been

recovered as part of the clothings.     The High Court, in

our opinion, correctly observed that ordinarily a woman

would not carry her wedding dress on her honeymoon

trip. The High Court also notices that though the

prosecution had taken custody of all the clothes which

Namita had taken with her on the honeymoon trip, they

were not produced at the trial for identification by the

witnesses. Only photographs of the clothings, which had

been    allegedly    taken     on      12th    June,     1979     i.e.

after 16 days, were produced.

38.    Mr. Malhotra had, however, submitted that these

clothes were torn, lacerated in blood stains and,

therefore, must have withered away into waste beyond

recognition. In our opinion, the High Court has correctly

taken view that the prosecution was duty bound to

produce the clothings at the trial. It was through these

clothings   and     articles    that    the     prosecution       had

sought to establish the identity of the deceased.                 The

High Court, in our opinion, correctly recorded the

conclusion that on consideration of the relevant evidence

of the witnesses and various documents on record, the

prosecution had miserably failed to establish the recovery

of clothes or shoes by means of any cogent and reliable

evidence. The High Court also held that the identification

of the clothings and shoes as belonging to Namita

through the testimony of PW-48 Jagdish Singh Lochab

and PWUK-2 Amita           Lochab was not              sufficient to

discharge   the burden         of proof       which lay     on the

prosecution.     The   High   Court    notices      that    the

identification of the shoes by Mr. Lochab could not be

definitely said to have made in the presence of any police

officer. Mr. Lochab was unable to remember if any police

officer was present or not at the time of the identification.

In the first instance, he had stated that the officer had

recorded his statement and he had signed the same with

regard to the identification of the clothes. However, in the

same   breath,    when   confronted    with   the    previous

statement made to the Belgium Investigation Authorities,

he denied it. The High Court also notices that there was

no mention of any identification test of clothings having

been made by these witnesses.       In our view, the High

Court had drawn the only logical conclusion from the

aforesaid that this witness was not consistent so far as

the identification of the clothes are concerned. The

prosecution did try to prove that the shoes recovered

were only purchased in Britain and that it had been

purchased from Top Shop. The High Court observed that

the test identification of the property has not been done

in accordance with certain well settled legal parameters.

Certain safeguards had to be observed to rule out the

possibility of any doubt or confusion. Apart from the

technical objections with regard to the test identification,

the    High   Court    adversely      commented      that       only

photographs of the clothes were produced. We, therefore,

find no merit in the submission of Mr. Malhotra that the

clothes had been definitely identified as belonging to



39.    This now brings us to a vital segment of the case

which had to be proved by the prosecution i.e. identity of

the    body    parts   recovered      on     29th   May,        1979

and 2nd August, 1979 as that of Namita. To link the body

parts to Namita, the prosecution had examined a number

of    witnesses.   Heavy   reliance    was     placed   by       the

prosecution on the report of the postmortem examination

conducted by Dr. Rilleret (since dead) and PWBG-4 G.

Voordecker, Forensic Pathologist.          The prosecution also

relied on the evidence of PWBG-5 Lambert Claudine and

Stomatologist PWBG-20 Wackens Georges, who had

examined the dental specifics of the body and the report

of finger/palm prints experts. The other witnesses relied

upon          by    the    prosecution      were    PWUK-1

Smt. Chandermukhi Lochab and PW-48 Jagdish Singh

Lochab, i.e. mother and father of Namita.          They gave

description of certain identification/special marks which

Namita had on her person. According to Jagdish Singh

Lochab (PW-48), Namita was about 5'-4" of height, the

hair of her head were black, she had 31 teeth instead

of 32 as one tooth had been extracted at young age; she

had a scar on her right knee, had a fracture of her left

wrist and had a smallpox inoculation mark on her left

upper arm. PWBG-4 Voordecker Guy has concluded its

report as under:-

       i)     The victim had been strangulated.

       ii)    The hair of the victim were black.

       iii)   The victim was a young woman of non-white

              race of a height of 1 meter 60 cms. (Emphasis


iv)     The victim had a special feature at the teeth

        level i.e. the existence of a single upper central

        incisor tooth.

v)      An old Coutaneous triangular cicatricies mark

        of three centimeters was there on the surface

        of right knee cap.

vi)     There were burns on the chin at the left retro

        articular region and also on the limbs, on the

        left and right arms and left forearm.              These

        burns appeared to be caused after death.

vii)    The dislocation of the body was work of a

        doctor/surgeon or a butcher.

viii)   The autopsy was done on 29th May, 1979 and

        the death took place within 48 hrs.

ix)     The autopsy was carried out on 29th May, 1979

        but report submitted on 11th December, 1979.

x)      The examining doctor could not say if there

        were vaccination marks on left arm and

        callosities   in   the   front   side   of   the    feet.

        (Emphasis supplied)

40.   The    Stomatologist    PWBG-20    Wackens   Georges

concluded his opinion as follows:-

      i)     That the body belonged to a person having

             feminine sex.

      ii)    It was of a person between 20 and 30 years of

             age who was of African or Indian origin.

             (Emphasis supplied)

      iii)   Left upper incisor was not there which might

             have been lost since long time.

      iv)    The teeth were of a person who lived in an

             affluent social status.

41.   Mr. Aggarwal has criticised the veracity of the

aforesaid findings on a number of grounds which have

also been considered by the High Court. Mr. Aggarwal

has reiterated the submissions which were made before

the High Court.         He submits that the postmortem

examination on the body parts recovered in the morning

of 29th May, 1979 was conducted by Dr. Rilleret and

Voordecker Guy on 29th May, 1979 itself. The report is

given about seven months later on 11th December, 1979.

In this report, the conclusions are as under:-

      " From all the findings we are entitled to admit
      that the (sick) considered human remains are
      of a young woman of about 160 cms, of
      coloured race. (Emphasis supplied)

      The cuts were made after death by an
      individual who is apparently experienced in
      disjoining and who respected the anatomic

      The presence of bloodstains in the eyes makes
      us think a murder by constriction.

      The remains were burned superficially."

42.   According to Mr. Aggarwal, the postmortem report

was prepared after consultation with the father and sister

of Namita. This fact is apparently mentioned on page 24

of the report of Dr. Rilleret. We may also notice that the

postmortem examination of the torso/trunk portion

recovered on 2nd August, 1979 was performed by

Dr. Rilleret (since dead) and PWBG-4 Voordecker Guy on

3rd August, 1979. On a comparison of the evidence

gathered     respectively    on     29th    May,         1979

and 2nd August, 1979, these witnesses have recorded the

conclusion that "the human remains examined at the

later date do correspond to the same body namely to the

corpse of Namita Lochab."

43.   The   High   Court   upon   considering   the    entire

evidence relating to this issue, however, concluded that

no reliance could be placed on the reports presented by

the prosecution for the purpose of establishing the

identity of the body parts as that of Namita. The High

Court highlighted that P'WBG-20 Wackens Georges,

Stomatologist had in the first instance         stated on

examination of the dental specificities of the body parts

on 30th May, 1979, he recorded the report "X". However,

subsequently he stated that he had given another report

marked "A". He then tried to explain that the provisional

report was marked "X" and the final report was marked

"A". Upon comparison of the two reports, the High Court

concluded that the two reports are wholly inconsistent.

In the alleged provisional report, on the basis of the

stomatological examination PWBG-28 Dooms Jeanean

had concluded as under:-

     "Female individual, at least thirty years old and
      of North African type. Lived for a long time in a
      civilized, upper middle-class environment.
      Good education. Taking much care for her
      teeth. Regularly visited her dentist, who looks
      tidy, experienced and serious.

      The individual lacks one upper left central
      incisor and her left canine should have been
      rather conspicuous.

      The individual had probably a tic, such as
      biting her fingernails.

      This, and the other mentioned facts, suggest
      that the individual should be between 29 and
      30 years old." (Emphasis supplied)

44.   However, in the final report, the conclusions

recorded were as under:-

      "Individual belonging to the female sex whose
      age is presumed between 20 and 30 years and
      belonging to the North-African, Indian type.
      (Emphasis supplied)

      Lived since long in a civilized society in a well
      off category. Had good education. Taking very
      good care of teeth and used to visit regularly
      her dentist. The later used to take good care of
      them regularly and seriously.

      The individual did not have a left upper central
      incisive and had a prominently visible left
      It may not be overlooked that the individual
      have had a habit, such as nibbling her

45.     A perusal of the aforesaid clearly shows that in the

report which was prepared contemporaneously, the

experts had put the age of the deceased between 29 to 30

years.     A perusal of the same shows that initially the

report states that the individual was at-least 30 years old

and of North-African type. At the end of the report, it is

stated that the individual should be between 29-30 years

only.    This opinion undergoes a change by the time a

final report is prepared. It is now stated that the

"Individual belonging to the female sex whose age is

presumed between 20 and 30 years, and belonging to

North-African Indian type." The differences between the

two reports are so glaring, understandably, the High

Court was compelled to hold that the second report was

clearly an afterthought and deliberate improvement over

the earlier report.     The High Court, in our opinion,

appropriately concluded that this must have been made

to cover up the first report which did not connect the

body parts with that of Namita in as much as age of

Namita was stated to be around 25 years. In fact, it is a

matter of record that Namita was born in 1956, that

would make her only 24 years at the relevant time.

46.    The High Court thereafter took up the issue with

regard to the missing incisor tooth.      We have noticed

earlier that PW-48 Mr. Lochab had stated that Namita

had 31 teeth instead of 32 as one tooth had been

extracted when she was of a very young age. The High

Court notices that in his earlier statement, he had stated

that another tooth had been fixed at the place of the

tooth so extracted.     This was done so that no anomaly

existed in her denture. This witness was also not able to

speak with certainty about the Namita having a scar on

her right knee. The High Court also took note of the fact

that   this   witness   did   not   mention   any   of    these

identification marks at the time when he had lodged the

missing report.    He had rather stated that he was not

aware of any visible marks or scars or other peculiarities

of Namita.    He was not even sure about the colour of

Namita's hair as he had stated that her hair were dark

brown. Contrasted with this, the evidence of the mother

PWUK-1 was that one of the Namita's front tooth was

missing.    However, there was no gap in between the

incisors. She had stated that Namita had a scar mark on

her left knee.    She also stated that Namita had three

inoculation marks on her shoulder.           The High Court

notices that this witness was, however, not able to give

details of any identification marks on her other children.

This, in our opinion, would be sufficient to justify the

conclusion reached by the High Court that neither the

mother PWUK-1 nor the father PW-48 of Namita were

exactly aware/sure of any identification marks of Namita.

The High Court, therefore, observed that a possibility can

not be ruled out that these witnesses may have given

these marks after the disclosure of such marks in the

postmortem examination's report.        In fact, it may be

noteworthy that no vaccination/inoculation marks have

been    found    by   the   doctors,   who   conducted    the

postmortem examination.

47.    Mr. Malhotra had, however, emphasised that the

identity of Namita had been established from the

comparison of palm prints found in the house of her

parents and the palm prints of the body parts found in

the rubbish container.    The High Court examined this

issue with due care and caution.          It is noticed that

PWUK-18 Christopher John Coombs, the finger print

expert was not able to conclude that the evidence

produced would connect the palm prints with the palm

prints of Namita. The reports submitted by the doctors

contained   numerous     discrepancies.    This   apart   the

identification marks given by the witnesses did not

coincide with the reports. Therefore, the High Court

concluded that no implicit reliance could be placed upon

them for the purpose of establishing the identity of these

body parts as that of Namita.


48.   Mr. Malhotra had emphasised that the examination

of the blood recovered form the bathroom and the blood

group of Namita, both being identical, the High Court

wrongly failed to rely upon the same.       The High Court

rejected the blood report on the grounds that report in

many columns used the term "Nihil" meaning "No". The

report also contained question marks, blank spaces at

various places. The report suggests that it is merely a

comparison of favorable characteristics. The experts did

not provide any explanation in regard to the terms that

had been used in the report.      In fact, the High Court

records a conclusion that the report used different

methods i.e. ABO method and Gm method without giving

any justification as to why the two different methods

were used.    Therefore, the High Court concluded that

unfavorable characteristics/factors detected during the

course of examination had been suppressed. The High

Court also took note of the fact that the prosecution

failed to place on record any cogent evidence with regard

to the blood group of Namita.         PW-48 only stated her

blood group was `O', but even he was not able to say

whether it was `O+' or `O-`.          The High Court quite

appropriately observed, on the basis of the opinion of the

examining    experts,   that   more    than   fifty   per    cent

population of Belgium has `O' blood group. In such state

of affairs, the High Court was constrained to conclude

that the prosecution has not been able to establish even

this limb by means of cogent and reliable evidence.

49.   Mr. Aggarwal had also pointed out a number of

other infirmities with regard to the non-comparison of a

blood sample taken from the body parts recovered. He

had pointed out that no reliance could have been placed

on the analysis of the blood by PWBG-17. According to

Mr.    Aggarwal     this    witness     had     examined

"crusts"/"lumps" of "dark red" blood. This, according to

Mr. Aggarwal, would indicate that the blood belonged to a

living person since it was coagulated and that the blood

was fairly new. This in turn would lead to a reasonable

inference that the blood did not belong to Namita Lochab,

in as much, as her blood should been "powdery" i.e.

non-coagulated (belonging to a dead person). It should

have been brownish black / black in colour as it would

have been old blood, since it was recovered more than

two weeks after the alleged dismemberment of her body

in the bathroom.       In support of the submission,

Mr. Aggarwal had relied on Parikh's Textbook of Medical

Jurisprudence Forensic Medicine and Toxicology, in

particular on page 7.11 and 7.23.           In the aforesaid

textbook, it is stated as under:-

      "Character: Sometimes, it is possible to
      determine if blood came from (a) living or dead
      body (b) artery or vein (c) victim or assailant (d)
      infant or adult, and (e) male or female.

      Living or dead body: Blood which has effused
      during life can be peeled off in scales on drying
      due to the presence of fibrin. Blood which has
      flowed after death tends to break up into
      powder on drying."

The issue was raised before the High Court.         The High

Court, however, rejected the reports for the reason stated

as not being intrinsically reliable.

50.   We are of the considered opinion that there is no

reliable evidence to indicate that the blood that was

recovered from the bathroom of room no. 415 definitely

belonged to Namita.      It must be remembered that the

only drop of blood that was found was at the base of the

bidet, in the bathroom.      The bathroom would be used

successively by different tourists occupying the room.

This apart, the very recovery of the blood stains from the

bidet seems highly doubtful.       It has come into the

evidence of PWBG-19 Salomone Levy, the Manager of the

hotel in whose presence the blood stains were allegedly

lifted, that many tourists had occupied room no. 415

between 29th May, 1979 and 12th June, 1979. According

to him, no tourists/guests ever complained of any blood

spot on the bidet. The first ever discovery of blood was

stated to be on 12th/13th June, 1979, i.e., about 14 days

of the alleged incident. If the blood stains lifted from the

bidet were of a person who was killed on 28th May, 1979,

the same could not be of red or red brown colour. The

colour of the stain would have been blackish brown. It

appears to us that the High Court was wholly justified in

rejecting the evidence with regard to the recovery of blood

from the bidet.

51.   We now come to the final circumstances relied upon

by the prosecution with regard to the conduct of the

respondent after returning to England.      We are of the

considered opinion that the High Court was not correct

in drawing an adverse inference against the respondent

because he remained in hiding till he was arrested by the

CBI.    In this case, the subsequent conduct of the

appellant is not consistent with the expected conduct of a

guilty person. If the respondent had any intention of

absconding, he could have done so initially after the

alleged murder of his wife. He had no need to come back

to England.   Having come back he need not have gone

directly to the house of his in-laws. Not only did he come

back to England, he carried with him the red suitcase

containing some of Namita's clothes.    According to the

prosecution, this suitcase had contained blood stains

which had belonged to Namita. It is inconceivable that a

person having a guilty mind would have been carrying

such an incriminating article back to the house of his in-

laws.    As noticed above, he went back to India

apprehending danger from his father-in-law and family.

This apprehension of danger to his life at the instance of

his father-in-law continued even in India. The fact that

an attempt was made on his life had been duly recorded

by the trial court. The respondent had been petitioning

                 the police authorities as well as the Home Minister and

                  the Prime Minister of India seeking protection. Evading

                  arrest would certainly be an illegal act but it does not

                  lead to the only conclusion that the respondent was

                  hiding due to a guilty conscience.       We may also notice

                  here the observations made by this Court in the case of

                  Matru Alias Girish Chandra Vs.           The State of Uttar

                  Pradesh7 which are as follows:-

                        "The appellant's conduct in absconding was
                        also relied upon. Now, mere absconding by
                        itself does not necessarily lead to a firm
                        conclusion of guilty mind. Even an innocent
                        man may feel panicky and try to evade arrest
                        when wrongly suspected of a grave crime such
                        is the instinct of self-preservation. The act of
                        absconding is no doubt relevant piece of
                        evidence to be considered along with other
                        evidence but its value would always depend on
                        the circumstances of each case. Normally the
                        courts are disinclined to attach much
                        importance to the act of absconding, treating it
                        as a very small item in the evidence for
                        sustaining conviction. It can scarcely be held
                        as a determining link in completing the chain
                        of circumstantial evidence which must admit
                        of no other reasonable hypothesis than that of
                        the guilt of the accused."

                  52.   We   are   of   the   considered    opinion   that   the

                  respondent did not come out of hiding due to fear as also

                  to avoid arrest by the police but it certainly can not be

    (1971) 2 SCC 75
concluded that he was hiding because of a guilty


53.   We may also notice here that according to the

prosecution, dismemberment of the body parts was

performed either with surgical instruments or with the

aid of a butter knife and a fork. However, at the trial, the

prosecution did not produce any evidence with regard to

the recovery of any weapon of offence. Nor any weapon

was produced in court, at the trial. Even according to the

sequence given by the prosecution, it would have been

impossible for the respondent to procure the surgical

instruments in the city of Brussels during the night

intervening 27th/28th May, 1979. It is a matter of record

that the entire group of tourists did not return back to

the hotel till after 11 O' clock during the tour "Brussels

by Night".     Namita was with him throughout the tour.

Equally   he    could   not   have   carried   the   surgical

instruments with him without the same being noticed at

the customs barriers.         This apart, prosecution has

miserably failed to establish that the respondent had any

intention of committing the murder of his wife at the

commencement of the honeymoon trip.               Even Namita's

parents did not entertain any such apprehensions. It is

also the prosecution case that something went amiss in

room no. 415 during the night of 27th/28th May, 1979.

Therefore,     it   makes      the   possession     of    surgical

instruments by the respondent on the fateful night in

Brussels virtually impossible.        We are also unable to

accept that such severance of the body parts could

possibly be achieved by use of a simple butter knife. It is

simply too farfetched a notion to be taken seriously.

54.     We   are    of   the   considered   opinion      that   the

conclusions reached by the High Court would clearly

show that the prosecution had miserably failed to

connect the respondent with the alleged murder of his

wife.    The conclusions recorded by the High Court are

fully justified by the evidence on record.                We are,

therefore, unable to agree with Mr. Malhotra that there

has been any miscarriage of justice in the facts and

circumstances of this case.

55.   Before we part with this judgment, we must place

on    record   our   appreciation      of   the     very     valuable

assistance rendered by Mr. P.P. Malhotra, the learned

Additional Solicitor General and Mr. Siddharth Aggarwal,

who appeared for the respondent.

56.   We, therefore, find no merit in the appeal.                   The

appeal is accordingly dismissed.

                                    [B.Sudershan Reddy]

                                    [Surinder Singh Nijjar]

New Delhi:
January 28, 2011.