REPORTABL
E
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1360 OF 2003
State through C.B.I ... Appellant
VERSUS
Mahender Singh Dahiya ...Respondent
JUDGMENT
SURINDER SINGH NIJJAR, J.
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
1
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
2
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
Court.
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
3
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.
4
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
Council.
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-
5
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
6
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
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
8
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
9
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
10
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
11
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
12
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
13
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
Namita.
J. Evidence connecting the torso to be of
Namita.
14
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
15
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
16
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
days.
(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
17
is only two hundred meters away from the
hotel.
(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
Namita.
(10) The palm prints of the palm recovered from
the rubbish bin match the palm print of
Namita.
(11) The torso recovered has been identified to
be that of Namita from Vergote lake which
is only seventeen minutes walking from the
hotel.
(12) Therefore, there is scientific evidence to
establish the identity of the victim to be
that of Namita.
18
(13) He ran away from the father of the
deceased at the first opportunity that he
got.
(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
19
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
20
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
21
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
22
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
23
(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,
24
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,
25
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
26
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
27
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
28
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
doubt.
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.
29
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.
30
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."
1
1952 SCR 1091
31
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
2
(1974) 3 SCC 668
32
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.
Motive
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
33
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
Administration4).
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."
3
1993 Supp (3) SCC 681
4
1994 Supp (3) SCC 367
5
1989 Supp (1) SCC 91
34
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
6
1995 Supp (1) SCC 80
35
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
36
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
37
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.
LAST SEEN CIRCUMSTANCE/EVIDENCE -
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,
38
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
39
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.
EVENTS ON THE MORNING OF 28th May, 1979 -
40
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
41
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
42
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
43
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
44
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
45
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.
RECOVERY OF BODY PARTS FROM THE RUBBISH
CONTAINER AND THE IDENTIFICATION THEREOF -
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
46
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
47
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
48
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.
49
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
plausible.
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
50
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
51
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.
52
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
Namita.
IDENTITY OF THE BODY PARTS
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
53
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
supplied)
54
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)
55
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
56
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
characteristics.
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
57
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:-
58
"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
canine.
It may not be overlooked that the individual
have had a habit, such as nibbling her
fingers."
59
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
60
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
61
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
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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.
RECOVERY OF THE BLOOD FROM THE BATHROOM
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
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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
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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,
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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.
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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
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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
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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
7
(1971) 2 SCC 75
69
concluded that he was hiding because of a guilty
conscience.
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
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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.
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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.
...................................J.
[B.Sudershan Reddy]
...................................J.
[Surinder Singh Nijjar]
New Delhi:
January 28, 2011.
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