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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 896 of 2011
Rohtash Kumar …Appellant
Versus
State of Haryana …Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been filed against the judgment and order dated
5.2.2009 passed by the High Court of Punjab and Haryana at
Chandigarh in Criminal Appeal No. 862-DB of 2006, by which it has
affirmed the judgment and order of the Sessions Court, by way of
which and whereunder the appellant has been convicted for the
offences punishable under Sections 302 and 404 of the Indian Penal
Code, 1860 (hereinafter referred to as `the IPC’), and sentenced to
undergo life imprisonment and to pay a fine of Rs.5,000/-, and inPage 2
default of payment of fine, to undergo further rigorous imprisonment
for one year under Section 302 IPC; and was also sentenced to
undergo rigorous imprisonment for two years and to pay a fine of
Rs.500/-, and in default of payment of fine, to undergo further
rigorous imprisonment for three months under Section 404 IPC.
However, both the substantive sentences have been ordered to run
concurrently.
2. Facts and circumstances as per the prosecution in brief, are as
under:
A. Appellant got married to Sonia (since deceased), aged 30 years,
in March 2003. It was an inter-caste marriage, and thus, was not
approved of by Sonia’s family members. They had both studied
Pharmacy together. After passing the Pharmacy Course, Sonia
(deceased) was appointed as a Lecturer in the B.S.A. Pharmacy
College, Faridabad, and she was also working as a Warden in the
Girls’ hostel of the said Pharmacy College, situated in Kothi No. 783,
Sector 21-A, Faridabad. The married life of the couple was not happy
and they thus filed a Divorce Petition on the basis of mutual consent
under Section 13-B of the Hindu Marriage Act, 1955 before the
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Family Court, Rohtak. The first motion was complete and the second
motion had been fixed for 3.9.2004.
B. On 2.9.2004, Sonia (deceased) sent a telephonic message to her
mother, Smt. Dhanpati Devi (PW.3), stating that in the previous
evening, the appellant Rohtash had come to meet her in the hostel at
8.00 P.M. and had told her that he would appear in the Family Court
at Rohtak on 3.9.2004, to make his statement for getting the divorce.
C. In view of the above, on 2.9.2004 at about 5.00 P.M., Sube
Singh (PW.1), father of Sonia (deceased), came alongwith his nephew
Wazir Singh to meet Sonia in her hostel at Faridabad. However, when
they reached there, Ghanshyam (Security Guard), Arjun (Cook) and
Bimla (Caretaker) of the hostel came and met them. Bimla (PW.8)
(Caretaker) told them that on the same day at about 1.00 P.M., the
appellant had come to the hostel to meet Sonia. Both of them had
engaged in conversation for about one hour, while sitting in the
verandah of the hostel and also had tea together. After the appellant
had left the hostel, Bimla (PW.8) had gone to bathroom to wash
clothes. Later on, when she had gone in search of Sonia (deceased),
she had found her lying dead among the plants, in the gallery of the
hostel. She had died of strangulation.
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D. Sube Singh (PW.1), had gone to the police station and lodged a
complaint giving all the details, also stating that the appellant might
have committed the said offence, as she had scratch marks on her
neck, as well as on her breasts.
E. In view of the complaint made by Sube Singh (PW.1), an FIR
was registered (Ex.P-12). Necessary investigation was conducted,
statements of witnesses were recorded, and the postmortem
examination on the dead body of Sonia (deceased) was also
performed. The appellant was arrested only on 8.9.2004. The articles
collected from the place of occurrence and samples taken from the
appellant, particularly, specimens of his hair etc., were sent to the
Forensic Science Laboratory, Madhuban, for the preparation of an
FSL report. After completion of the investigation, a chargesheet was
filed against the appellant in court.
F. After committal proceedings, charges were framed against the
appellant under Sections 302 and 404 IPC. The prosecution examined
21 witnesses in support of its case, including the parents and relatives
of the deceased, as well as Dr. Virender Yadav (PW.4), Ms. Anita
Dahiya, the then Chief Judicial Magistrate, Faridabad (PW.17), Dr.
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O.P. Sethi, (PW.21), and SI Vinod Kumar (PW.20), the investigating
officer. Some of the cited witnesses were given up, and a large
number of documents etc., were filed.
G. The appellant was examined under Section 313 of the Code of
Criminal Procedure, 1973, (hereinafter referred to as `the Cr.P.C.’),
and all the incriminating material/circumstances were put to him one
by one. He denied each allegation levelled against him by repeatedly
stating, “It is incorrect.” The appellant did not himself, adduce any
evidence in defence.
The learned Sessions Court, after appreciating all the evidence
and the submissions made by the public prosecutor and the defence
counsel, convicted and sentenced the appellant as has been referred to
hereinabove.
H. Aggrieved, the appellant preferred an Appeal before the High
Court, which has been dismissed vide impugned judgment and order
dated 5.2.2009.
Hence, this appeal.
3. Dr. Sushil Balwada, learned counsel appearing on behalf of the
appellant has submitted, that there was no eye-witness to the
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occurrence and that the prosecution had failed to prove and meet the
parameters laid down by this Court for conviction in a case of
circumstantial evidence. Even if there had been some discord in their
marriage, they had agreed to separate mutually and the second motion
of the Divorce Petition filed by mutual consent, had been fixed for
next day i.e. 3.9.2004. Thus, there had been no occasion for the
appellant to commit the offence. The material witnesses to the
incident, particularly Ghanshyam and Arjun, who had been working
as the Guard and Cook respectively in the Girls’ hostel, and Mahender
(Attendant) of the Taneja Guest House, where the appellant is alleged
to have stayed under a fake name, have not been examined. The
prosecution was under an obligation to examine each of them. The
evidence of Jagatpal (PW.2), a hostile witness, could not have been
considered at all. In light of the facts of this case, the theory of “last
seen” together cannot be applied. Furthermore, the prosecution has
created an entirely improbable story to the effect that after killing
Sonia, the appellant had taken away her mobile phone, and had in the
evening on the same day, telephoned his mother-in-law Dhanpati
(PW.3), as well as several other relatives of Sonia, making an extrajudicial confession stating that he had killed Sonia, and that he would
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now himself commit suicide. The recovery of mobile phone from
Itarsi (M.P.) cannot be relied upon, as this place is far away from
Faridabad. There are material inconsistencies in the statements of the
witnesses. The chain of circumstances is not complete. The
prosecution must prove its case beyond reasonable doubt, and cannot
take advantage of the weaknesses in the case of the defence. Thus,
the appeal deserves to be allowed.
4. Per contra, Shri Ramesh Kumar, learned counsel appearing on
behalf of the State, has opposed the appeal contending that the
appellant had last been seen with Sonia (deceased), by several persons
including Bimla (PW.8), in the hostel. The appellant had thereafter
left the hostel alone, just before Sonia had been found dead. The
appellant, after committing the offence, had run away and stayed at
the Taneja Guest House, Faridabad, under a fictitious name and by
providing a fake address. He had also made an attempt to commit
suicide in the said Guest House, and on being asked about the same by
the attendant, he had run away from there. The appellant had left his
diary and wrist watch, as well as a letter in the name of the
Superintendent of Police, the Deputy Commissioner of Faridabad, the
Chief Justice of the Punjab & Haryana High Court, and the Chairman
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of the Human Rights Commission, complaining about the family
members of Sonia. The diary had also contained a suicide note. The
conduct of the appellant clearly indicates that he has committed the
offence. The concurrent findings of fact recorded by the courts below
do not warrant any interference and therefore, the appeal is liable to
be dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties, and perused the record.
Before we enter into the merits of the case and its factual
matrix, it is desirable to deal with the legal issues involved herein.
Case of Circumstantial evidence:
6. The present case is of circumstantial evidence, as there exists
no eye-witness to the occurrence. The primary issue herein involves
determination of the requirements for deciding a case of
circumstantial evidence.
7. This Court, in R. Shaji v. State of Kerala, AIR 2013 SC 651
has held, “the prosecution must establish its case beyond reasonable
doubt, and cannot derive any strength from the weaknesses in the
defence put up by the accused. However, a false defence may be
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brought to notice, only to lend assurance to the Court as regards the
various links in the chain of circumstantial evidence, which are in
themselves complete. The circumstances on the basis of which the
conclusion of guilt is to be drawn, must be fully established. The same
must be of a conclusive nature, and must exclude all possible
hypothesis, except the one to be proved. Facts so established must be
consistent with the hypothesis of the guilt of the accused, and the
chain of evidence must be complete, so as not to leave any reasonable
ground for a conclusion consistent with the innocence of the accused,
and must further show, that in all probability, the said offence must
have been committed by the accused.”
(See also: Sharad Birdhichand Sarda v. State of Maharashtra,
AIR 1984 SC 1622; and Paramjeet Singh @ Pamma v. State of
Uttarakhand, AIR 2011 SC 200).
Thus, the Court while convicting a person on the basis of the
circumstantial evidence, must apply the aforesaid principles.
Whether prosecution must examine all the witnesses:
8. A common issue that may arise in such cases where some of the
witnesses have not been examined, though the same may be material
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witnesses is, whether the prosecution is bound to examine all the
listed/cited witnesses.
This Court, in Abdul Gani & Ors. v. State of Madhya
Pradesh, AIR 1954 SC 31, has examined the aforesaid issue and held,
that as a general rule, all witnesses must be called upon to testify in
the course of the hearing of the prosecution, but that there is no
obligation compelling the public prosecutor to call upon all the
witnesses available who can depose regarding the facts that the
prosecution desires to prove. Ultimately, it is a matter left to the
discretion of the public prosecutor, and though a court ought to and no
doubt would, take into consideration the absence of witnesses whose
testimony would reasonably be expected, it must adjudge the evidence
as a whole and arrive at its conclusion accordingly, taking into
consideration the persuasiveness of the testimony given in the light of
such criticism, as may be levelled at the absence of possible material
witnesses.
9. In Sardul Singh v. State of Bombay, AIR 1957 SC 747, a
similar view has been reiterated, observing that a court cannot,
normally compel the prosecution to examine a witness which the
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prosecution does not choose to examine, and that the duty of a fair
prosecutor extends only to the extent of examination of such
witnesses, who are necessary for the purpose of disclosing the story of
the prosecution with all its essentials.
10. In Masalti v. State of U.P., AIR 1965 SC 202, this Court held
that it would be unsound to lay down as a general rule, that every
witness must be examined, even though, the evidence provided by
such witness may not be very material, or even if it is a known fact
that the said witness has either been won over or terrorised. “In such
cases, it is always open to the defence to examine such witnesses as
their own witnesses, and the court itself may also call upon such a
witness in the interests of justice under Section 540 Cr.P.C.”.
(See also: Bir Singh & Ors. v. State of U.P., (1977) 4 SCC 420)
11. In Darya Singh & Ors. v. State of Punjab, AIR 1965 SC 328,
this Court reiterated a similar view and held that if the eye-witness(s)
is deliberately kept back, the Court may draw inference against the
prosecution and may, in a proper case, regard the failure of the
prosecutor to examine the said witnesses as constituting a serious
infirmity in the proof of the prosecution case.
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12. In Raghubir Singh v. State of U.P., AIR 1971 SC 2156, this
Court held as under:
“…Material witnesses considered necessary by the
prosecution for unfolding the prosecution story alone
need be produced without unnecessary and redundant
multiplication of witnesses. The appellant's counsel has
not shown how the prosecution story is rendered less
trustworthy as a result of the non-production of the
witnesses mentioned by him. No material and important
witness was deliberately kept back by the prosecution.
Incidentally we may point out that the accused too have
not considered it proper to produce those persons as
witnesses for controverting the prosecution version…..”
(Emphasis added)
13. In Harpal Singh v. Devinder Singh & Anr., AIR 1997 SC
2914, this Court reiterated a similar view and further observed:
“….The illustration (g) in Section 114 of the Evidence
Act is only a permissible inference and not a necessary
inference. Unless there are other circumstances also to
facilitate the drawing of an adverse inference, it should
not be a mechanical process to draw the adverse
inference merely on the strength of non-examination of a
witness even if it is a material witness…..”
14. In Mohanlal Shamji Soni v. Union of India & Anr., AIR
1991 SC 1346, this Court held:
“10. It is cardinal rule in the law of evidence that the
best available evidence should be brought before the
Court to prove a fact or the points in issue. But it is left
either for the prosecution or for the defence to establish
its respective case by adducing the best available
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evidence and the Court is not empowered under the
provisions of the Code to compel either the prosecution
or the defence to examine any particular witness or
witnesses on their sides. Nonetheless if either of the
parties withholds any evidence which could be produced
and which, if produced, be unfavourable to the party
withholding such evidence, the Court can draw a
presumption under illustration (g) to Section 114 of the
Evidence Act…. In order to enable the Court to find out
the truth and render a just decision, the salutary
provisions of Section 540 of the Code (Section 311 of the
new Code) are enacted whereunder any Court by
exercising its discretionary authority at any stage of
enquiry, trial or other proceeding can summon any
person as a witness or examine any person in attendance
though not summoned as a witness or recall or reexamine any person in attendance though not summoned
as a witness or recall and re-examine any person already
examined who are expected to be able to throw light
upon the matter in dispute; because if judgments happen
to be rendered on inchoate, inconclusive and speculative
presentation of facts, the ends of justice would be
defeated.”
15. In Banti @ Guddu v. State of M.P., AIR 2004 SC 261, this
Court held:
“In trials before a Court of Session the prosecution
"shall be conducted by a Public Prosecutor". Section 226
of the Code of Criminal Procedure, 1973 enjoins on him
to open up his case by describing the charge brought
against the accused. He has to state what evidence he
proposes to adduce for proving the guilt of the accused.
……If that version is not in support of the prosecution
case it would be unreasonable to insist on the Public
Prosecutor to examine those persons as witnesses for
prosecution.
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When the case reaches the stage envisages in
Section 231 of the Code the Sessions Judge is obliged "to
take all such evidence as may be produced in support of
the prosecution". It is clear form the said section that the
Public Prosecutor is expected to produce evidence "in
support of the prosecution" and not in derogation of the
prosecution case. At the said stage the Public Prosecutor
would be in a position to take a decision as to which
among the presence cited are to be examined. If there
are too many witnesses on the same point the Public
Prosecutor is at liberty to choose two or some among
them alone so that the time of the Court can be saved
from repetitious depositions on the same factual aspects.
……This will help not only the prosecution in relieving
itself of the strain of adducing repetitive evidence on the
same point but also help the Court considerably in
lessening the workload. Time has come to make every
effort possible to lessen the workload, particularly those
courts crammed with cases, but without impairing the
cause of justice. ……It is open to the defence to cite him
and examine him as a defence witness……..”
16. The said issue was also considered by this Court in R. Shaji
(supra), and the Court, after placing reliance upon its judgments in
Vadivelu Thevar v. State of Madras; AIR 1957 SC 614; and Kishan
Chand v. State of Haryana, JT 2013( 1) SC 222), held as under: .
“22. In the matter of appreciation of evidence of
witnesses, it is not the number of witnesses, but the
quality of their evidence which is important, as there is
no requirement in the law of evidence stating that a
particular number of witnesses must be examined in
order to prove/disprove a fact. It is a time-honoured
principle, that evidence must be weighed and not
counted. The test is whether the evidence has a ring of
truth, is cogent, credible and trustworthy, or otherwise.
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The legal system has laid emphasis on the value provided
by each witness, as opposed to the multiplicity or
plurality of witnesses. It is thus, the quality and not
quantity, which determines the adequacy of evidence, as
has been provided by Section 134 of the Evidence Act.
Where the law requires the examination of at least one
attesting witness, it has been held that the number of
witnesses produced over and above this, does not carry
any weight.”
17. Thus, the prosecution is not bound to examine all the cited
witnesses, and it can drop witnesses to avoid multiplicity or plurality
of witnesses. The accused can also examine the cited, but not
examined witnesses, if he so desires, in his defence. It is the discretion
of the prosecutor to tender the witnesses to prove the case of the
prosecution and “the court will not interfere with the exercise of that
discretion unless, perhaps, it can be shown that the prosecution has
been influenced by some oblique motive.” In an extra-ordinary
situation, if the court comes to the conclusion that a material witness
has been withheld, it can draw an adverse inference against the
prosecution, as has been provided under Section 114 of the Evidence
Act. Undoubtedly, the public prosecutor must not take the liberty to
“pick and choose” his witnesses, as he must be fair to the court, and
therefore, to the truth. In a given case, the Court can always examine
a witness as a court witness, if it is so warranted in the interests of
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justice. In fact, the evidence of the witnesses, must be tested on the
touchstone of reliability, credibility and trustworthiness. If the court
finds the same to be untruthful, there is no legal bar for it to discard
the same.
Discrepancies in the depositions:
18. It is a settled legal proposition that while appreciating the
evidence of a witness, minor discrepancies on trivial matters which do
not affect the core of the case of the prosecution, must not prompt the
court to reject the evidence in its entirety. Therefore, unless irrelevant
details which do not in any way corrode the credibility of a witness
should be ignored. The court has to examine whether evidence read as
a whole appears to have a ring of truth. Once that impression is
formed, it is undoubtedly necessary for the court to scrutinize the
evidence more particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the evidence as a whole and
evaluate them to find out whether it is against the general tenor of the
evidence given by the witnesses and whether the earlier evaluation of
the evidence is shaken, as to render it unworthy of belief. Thus, the
court is not supposed to give undue importance to omissions,
contradictions and discrepancies which do not go to the heart of the
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matter, and shake the basic version of the prosecution witness. Thus,
the court must read the evidence of a witness as a whole, and consider
the case in light of the entirety of the circumstances, ignoring the
minor discrepancies with respect to trivial matters, which do not affect
the core of the case of the prosecution. The said discrepancies as
mentioned above, should not be taken into consideration, as they
cannot form grounds for rejecting the evidence on record as a whole.
(See: State of U.P. v. M.K. Anthony, AIR 1985 SC 48; State rep. by
Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; and
Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191).
Evidence of a hostile witness:
19. It is a settled legal proposition that evidence of a prosecution
witness cannot be rejected in toto, merely because the prosecution
chose to treat him as hostile and cross examined him. The evidence of
such witnesses cannot be treated as effaced, or washed off the record
altogether. The same can be accepted to the extent that their version
is found to be dependable, upon a careful scrutiny thereof.
20. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996
SC 2766, this Court held, that evidence of a hostile witness would not
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be rejected in entirety, if the same has been given in favour of either
the prosecution, or the accused, but is required to be subjected to
careful scrutiny, and thereafter, that portion of the evidence which is
consistent with the either case of the prosecution, or that of the
defence, may be relied upon. (See also: C. Muniappan & Ors. v.
State of Tamil Nadu, AIR 2010 SC 3718; Himanshu @ Chintu v.
State (NCT of Delhi), (2011) 2 SCC 36; and Ramesh Harijan v.
State of U.P., AIR 2012 SC 1979).
Therefore, the law permits the court to take into consideration
the deposition of a hostile witness, to the extent that the same is in
consonance with the case of the prosecution, and is found to be
reliable in careful judicial scrutiny.
Motive:
21. The evidence regarding the existence of a motive which
operates in the mind of the accused is very often very limited, and
may not be within the reach of others. The motive driving the accused
to commit an offence may be known only to him and to no other. In a
case of circumstantial evidence, motive may be a very relevant factor.
However, it is the perpetrator of the crime alone who is aware of the
circumstances that prompted him to adopt a certain course of action,
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leading to the commission of the crime. Therefore, if the evidence on
record suggests adequately, the existence of the necessary motive
required to commit a crime, it may be conceived that the accused has
in fact, committed the same. (Vide: Subedar Tewari v. State of U.P.
& Ors., AIR 1989 SC 733; Suresh Chandra Bahri v. State of
Bihar, AIR 1994 SC 2420; and Dr. Sunil Clifford Daniel v. State of
Punjab, (2012) 11 SCC 205).
Explanation of the accused:
22. It is obligatory on the part of the accused while being examined
under Section 313 Cr.P.C., to furnish some explanation with respect to
the incriminating circumstances associated with him, and the court
must take note of such explanation even in a case of circumstantial
evidence, to decide whether or not, the chain of circumstances is
complete. [Vide: Musheer Khan @ Badshah Khan & Anr. v. State
of Madhya Pradesh, AIR 2010 SC 762; and Dr. Sunil Clifford
Daniel (supra)].
23. This Court, in State of Maharashtra v. Suresh, (2000) 1 SCC
471, held as under:
“When the attention of the accused is drawn to such
circumstances that inculpate him in relation to the
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commission of the crime, and he fails to offer an
appropriate explanation or gives a false answer with
respect to the same, the said act may be counted as
providing a missing link for completing the chain of
circumstances.”
Undoubtedly, the prosecution has to prove its case beyond
reasonable doubt. However, in certain circumstances, the accused has
to furnish some explanation to the incriminating circumstances, which
has come in evidence, put to him. A false explanation may be counted
as providing a missing link for completing a chain of circumstances.
Last seen together theory:
24. In cases where the accused was last seen with the deceased
victim (last seen-together theory) just before the incident, it becomes
the duty of the accused to explain the circumstances under which the
death of the victim occurred. (Vide: Nika Ram v. State of Himachal
Pradesh, AIR 1972 SC 2077; and Ganeshlal v. State of
Maharashtra, (1992) 3 SCC 106).
25. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006)
10 SCC 681, this Court held as under:
“Where an accused is alleged to have committed the
murder of his wife and the prosecution succeeds in
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leading evidence to show that shortly before the
commission of crime they were seen together or the
offence takes place in the dwelling home where the
husband also normally resided, it has been consistently
held that if the accused does not offer any explanation
how the wife received injuries or offers an explanation
which is found to be false, it is a strong circumstance
which indicates that he is responsible for commission of
the crime.”
(See also: Prithipal Singh & Ors. v. State of Punjab & Anr.,
(2012) 1 SCC 10)
Thus, the doctrine of “last seen together” shifts the burden of
proof on the accused, requiring him to explain how the incident had
occurred. Failure on the part of the accused to furnish any
explanation in this regard, would give rise to a very strong
presumption against him.
Police official as a witness:
26. The term witness, means a person who is capable of providing
information by way of deposing as regards relevant facts, via an oral
statement, or a statement in writing, made or given in Court, or
otherwise.
In Pradeep Narayan Madgaonkar & Ors. v. State of
Maharashtra, AIR 1995 SC 1930, this Court examined the issue of
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the requirement of the examination of an independent witness, and
whether the evidence of a police witness requires corroboration. The
Court herein held, that the same must be subject to strict scrutiny.
However, the evidence of police officials cannot be discarded merely
on the ground that they belonged to the police force, and are either
interested in the investigating or the prosecuting agency. However, as
far as possible the corroboration of their evidence on material
particulars, should be sought.
(See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212;
Balbir Singh v. State, (1996) 11 SCC 139; Kalpnath Rai v. State
(Through CBI), AIR 1998 SC 201; M. Prabhulal v. Assistant
Director, Directorate of Revenue Intelligence, AIR 2003 SC 4311;
and Ravinderan v. Superintendent of Customs, AIR 2007 SC
2040).
Thus, a witness is normally considered to be independent,
unless he springs from sources which are likely to be tainted and this
usually means that the said witness has cause, to bear such enmity
against the accused, so as to implicate him falsely. In view of the
above, there can be no prohibition to the effect that a policeman
cannot be a witness, or that his deposition cannot be relied upon.
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27. The instant case requires to be considered in light of the
aforesaid settled legal propositions.
Sube Singh (PW.1), father of Sonia, deceased, had sufficient
reason to go to go to Faridabad to meet his daughter, in view of the
fact that the second motion of divorce between the appellant and the
deceased was fixed for next day, and Sonia, deceased had telephoned
her mother regarding the arrival of the appellant one day before,
stating that she had doubts about the promise made by the appellant to
the extent that he would make a statement before the Family Court at
Rohtak, to facilitate their divorce by mutual consent. It is but natural
for any parent, even if they dis-approve of the inter-caste marriage of
their children, to want to be with them at the time of such
proceedings, that would affect the life of their child. Sube Singh
(PW.1) has further deposed, that the police had recovered clothes,
rope, handkerchief, hairpin and blood stained earth etc. from the place
of occurrence, and had kept these articles in separate parcels.
28. Dhanpati (PW.3), mother of the deceased, has corroborated the
deposition of Sube Singh (PW.1), and has further deposed, that she
had received a phone call from the accused which had been made
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from the mobile phone number that had belonged to Sonia deceased.
On being asked, about the same by her, he had told her that he had
murdered Sonia in her hostel by strangulating her, and that thereafter,
he had run away from the place of occurrence. He had also stated that
he would commit suicide.
29. Bimla (PW.8), the caretaker of the hostel, has deposed that
while she was working as a caretaker in the Girls’ hostel, on 1.9.2004
at about 8-9 p.m., Sonia (deceased) had come to the hostel and
immediately had gone to make a phone call. After about 10 minutes,
her husband, i.e., the appellant accused had reached there. They had
engaged in some conversation. The next day, Sonia had come back
from college at about 1.00 p.m., and shortly after, the appellant had
also arrived there. Ghanshyam, the watchman had been told by the
appellant that he was husband of the warden and wanted to meet her.
Ghanshyam had not initially permitted him to enter the hostel, but had
allowed his entry after taking permission from Sonia. The appellant
and Sonia had then sat together in the verandah of the hostel, and had
spoken for about 30-40 minutes. Both of them had then left the hostel,
and had returned only after about one hour. After their arrival, the
witness had served them tea. Thereafter, she had gone to bathroom to
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wash clothes, and when she returned after about 20-25 minutes, she
had enquired from Ghanshyam regarding the whereabouts of Sonia
and her husband. She had then been told that Sonia was in her room,
whereas the appellant had already left the hostel alone. While going
Sonia’s room, she had found her lying dead in the garden, near the
plants in the hostel. Seeing her dead, the witness was frightened.
30. Mukesh Chand (PW.9), has proved the pendency of the case for
divorce by mutual consent before the Family Court, Rohtak and the
fact that the date of the second motion had been fixed for 3.9.2004.
31. Narender Singh (PW.12), is the brother-in-law of Sonia
(deceased). He has deposed that he had received a phone call at about
5.30 p.m. on 2.9.2004, from the mobile phone number belonging to
Sonia. The said phone call had been made by the appellant, and he
had informed the witness that he had killed Sonia, and had further told
him he had also had an illicit relationship with the wife of the witness.
The witness has deposed, that on hearing this, he had lost his temper
and had used abusive language in relation to the appellant, after which
he had disconnected the call.
25Page 26
Virender Singh (PW.19), a relative of Sonia’s, had also
received a similar phone call from the appellant from the mobile
phone number belonging to of Sonia.
32. Ms. Anita Dahiya (PW.17), the then Chief Judicial Magistrate,
Faridabad, has deposed that the investigating officer had wanted to
have an identification parade, but that the appellant had not agreed to
the same.
33. Jagatpal (PW.2), an attendant at the Taneja Rest House, NIT,
Faridabad, has deposed in his examination-in-chief that a person had
stayed in the said guest house, after disclosing his identity as Amit,
and by providing his address as 535, Model Town, Simla. He had
even made the requisite entries in the register in his own handwriting.
As regards the rest of the situation, he has stated that since his duty
was then over, his colleague Mahender, had come on duty at 9.00 a.m.
on 2.9.2004, and that therefore, he had no further information to offer.
At this stage, he was declared hostile as it was found that he was
suppressing the truth and thus, he was cross-examined. Undoubtedly,
he has turned hostile. However, he has admitted that on 2.9.2004, at
about 6.30 p.m., attendant Mahender had come to his place, and had
26Page 27
told him that the occupant of room no. 114 was attempting to commit
suicide, and this was when he, alongwith Mahender had gone to his
room. The appellant had thereafter, run away from the guest house.
They had tried to chase him but in vain. From his room, one diary, a
letter and wrist watch were recovered, and the said articles were
handed over to the police vide memo Ex.P5, which bore his
signature.
34. Dr. Virender Yadav (PW.4), had conducted the post-mortem
examination on the body of Sonia, and he has deposed that there was
bleeding with clotted blood present in the bilateral nostrils, and on the
right side of the mouth. Rigor mortis was present in all the four limbs
with postmortem staining on dependent parts. Multiple abrasions were
present on the front of the neck, with large reddish contusionsbilateral shoulders, more on the right side. Abrasions numbering four
of the size 2.5 x 0.75 cms., were present on the right side, just below
the clavicle and four of these in number were present on its left side.
On dissection, the muscle of the neck was contused with
hemorrhage with a fracture of the thyroid cartilage, and a fracture of
the tracheal rings with blood clots in the trachea. The adjoining
muscles and upper chest muscles were contused extensively with
27Page 28
blood clots, with bilateral fractures of the clavicle bone and the upper
second and third ribs.
In his opinion, the cause of death was asphyxia caused as a
result of smothering and throttling, which was ante-mortem in nature
and was sufficient to cause death in the natural course.
He has further deposed, that she had died within two minutes of
the offence, and before 24 hours of the post-mortem.
35. There is evidence on record to show that the mobile phone had
been purchased by Sonia from Itarsi on 10.9.2004. The same mobile
phone was recovered from the shop of Sonu at Itarsi upon the
disclosure statement made by the appellant, vide recovery memo
Ex.P-19.
36. In view of the aforesaid depositions, facts emerge as under:-
(i) The appellant and Sonia (deceased) had been classmates and
had developed intimacy. In spite of the fact that they belonged to
different castes, they had thereafter gotten married, knowing fully
well that their marriage would not be approved by at least one of the
two families.
28Page 29
(ii) Their marriage was not cordial and within an year of such
marriage, they had mutually decided to separate and had thus, filed a
petition for divorce by mutual consent under Section 13-B of the
Hindu Marriage Act, 1955, before the Family Court, Rohtak. The
first motion was clear, and the case was fixed for second motion on
3.9.2004. Just before the said date, the appellant had met Sonia
(deceased), and had assured her that he would agree to the said
divorce in the second motion on 3.9.2004, before the Family Court at
Rohtak.
(iii) The said information was furnished by Sonia (deceased), to her
mother Smt. Dhanpati Devi (PW.3), and it was in view thereof that
Sube Singh (PW.1), father of the deceased had come to Faridabad
only to meet Sonia.
(iv) While reaching there, Sube Singh (PW.1) had been informed by
Ghanshyam (Security Guard), Arjun (Cook) and Bimla, Caretaker
(PW.8), that the appellant had come to meet Sonia, and that now she
was lying dead in the garden. Bimla (PW.8) had also furnished him
with all the requisite details, as regards the visit of the appellant. Sube
29Page 30
Singh, father of the deceased, had lodged an FIR. Hence, criminal
law was set into motion and the investigation began.
(v) The Police had recovered the dead body, as well as various
material objects lying near it, including a rope.
(vi) The post-mortem report suggests that Sonia had died of
asphyxia caused as a result of smothering and throttling, and that it
had taken hardly any time to kill her.
(vii) The appellant had stayed at the Taneja Guest House, by
providing a fictitious name and address, and the next day had tried to
commit suicide. He had been chased by the hostel staff, but had
managed to run away. While running away, he had left a diary (Ex.P-
54), a wrist watch (Ex.P-56), and a letter (Ext.P-55).
(viii) On 2.9.2004, the appellant had made certain telephone calls
from the mobile phone belonging to Sonia, to the mother as well as to
several other relatives of the deceased, informing them about the
murder of Sonia that had been committed by him, and had further
stated that he would commit suicide.
30Page 31
(ix) A diary (Ex. P-54), a letter (Ex.P-55) and a wrist watch (Ex.P-
56), belonging to the appellant were recovered from the Taneja Guest
House. A suicide note had been written in the said diary by the
appellant, and a letter had also been written by him to the
Superintendent of Police, Faridabad, the District Collector, the Chief
Justice, High Court of Punjab & Haryana, and the Human Rights
Commissioner, suggesting his involvement. The recovery memo of
the same (Ex.P-5), bears the signatures of Jagatpal (PW.2) and
Mahender Singh, employees of the Taneja Guest House, Faridabad.
(x) The appellant had remained absconding for several days, and
after his apprehension, the mobile phone belonging to Sonia was
recovered from the shop of Sonu at Itarsi, Madhya Pradesh on the
basis of a disclosure statement made by him. The disclosure
statement made by the appellant on the basis of which the recovery
was made, bears the signatures of the appellant and of a police
personnel as a witness.
(xi) The call records clearly prove that the mobile phone belonging
to Sonia (deceased), had been used even after her death and that the
same had been in the possession of the appellant, as no body else
31Page 32
could have used the same. Sonia had died before 2.30 p.m. on
2.9.2004. The call records of her telephone, which have been
exhibited before the court, clearly disclose the outgoing calls that
were made from her telephone to her mother and other relatives, as
has been referred to hereinabove at 1620.55; 1625.47; 1637.17;
1707.46; and 1744.03 as Exh.P.21.
(xii) During the investigation, the appellant had refused to participate
in the Test Identification Parade, as he could have been identified by
Ghanshyam (Security Guard) of the hostel, Arjun (Cook) and Bimla,
Caretaker (PW.8), as well as by the staff of the Taneja Guest House.
(xiii) Jagatpal (PW.2), though had turned hostile, has provided
material information, and has also accepted his signatures on the
recovery memo and his statements, as well as those of Mahender, the
other attendant.
(xiv) The appellant has given a specimen of his hair to be compared
with the hair recovered from the place of occurrence, and the FSL
report (Ex.P-8) that was tendered as evidence has showed, that the
hair that was recovered from the place of occurrence, was found to be
32Page 33
similar in most of its morphological and microscopical characteristics,
to the sample of the hair provided by the appellant.
37. In view of the aforesaid factors, the Trial Court, as well as the
High Court, have convicted the appellant and awarded the sentences
as referred to hereinabove.
We have also been taken through the evidence on record, as
well as through the judgments of the courts below. Bimla, Caretaker
(PW.8), is definitely an independent witness. She had “last seen
together” the appellant and Sonia (deceased), just before her death,
and we do not see any reason to doubt the veracity of her statement. It
is also on record that the appellant had left alone from the hostel. The
appellant has not furnished any explanation with respect to what could
have happened to Sonia (deceased) while she was with him, if he was
not responsible for her death. No explanation was furnished by him
as regards why he had stayed at the Taneja Guest House, by providing
a fictitious name and false address and nor was any explanation
provided by him with respect to the circumstances under which, the
mobile phone belonging to Sonia, had come to be in his possession.
Admittedly, this is a case of a love marriage which had gone wrong.
Owing to such marital discord, they had decided to separate and to get
33Page 34
divorce by mutual consent. Therefore, it might have been frustration
which had forced the appellant to commit such a heinous crime.
38. From the undelivered letter that had been written by the
appellant in the name of Superintendent of Police and to others, in
Ex.P-54 recovered from the Taneja Guest House, it is evident that the
appellant had developed intimacy with Sonia (deceased) much earlier,
and had claimed to have married her in a temple, though, the formal
marriage between them had taken place in the year 2003. The said
letter reveals, that Sonia (deceased) and her family members had
tortured him mentally, and had extracted a huge amount of money
from him over a period of the past ten years. He had even persuaded
his friends, relatives and family members to give a loan to the
complainant, Sube Singh, which had never been returned by him.
Several threats had been made to the appellant by the family of the
deceased stating that they would involve him in a false dowry demand
case, eliminate him. The family members of the appellant had
severed all relations with him.
In the suicide note (Ex.P-55), the same story has been depicted.
Thus, the feelings of the appellant towards Sonia (deceased), and her
34Page 35
family members were such, that they could have given rise to a
motive for him to commit the said offence.
39. The non-examination of Sonu, from whose shop, the mobile
phone was recovered, cannot be said to be fatal for the reason that the
recovery memo bears the signature of the appellant himself. One
police Head Constable has also signed the same as a witness, and it is
not the case of the appellant that he had been forced to sign the said
recovery memo. Similarly, we do not find any force in the
submissions advanced on behalf of the appellant, stating that the nonexamination of Ghanshyam and Arjun from the girls’ hostel, or of
Mahender from the Taneja Guest House, requires the court to draw
adverse inference, as there is no need to provide the same evidence in
multiplicity. The appellant could have examined them or some of
them as defence witnesse(s). However, no such attempt was made on
his part.
40. A large number of discrepancies have been pointed out by the
learned counsel appearing on behalf of the appellant, and some of
them are reproduced as under:
35Page 36
A. The entry register maintained in the Girls Hostel for visitors
was never produced in court.
B. The finger prints taken from the glass and tea cups recovered
from the hostel, to prove that the same had been used by the
appellant, did not test positive.
C. The rope allegedly used in the crime, was not recovered, nor
has any positive evidence been produced to show that the
appellant had gone to the hostel armed with a rock.
D. A large number of girl students had been staying in the hostel,
and none of them were examined.
E. The postmortem report does not in any way prove the case of
the prosecution, for the reason that the throttling, smothering
and breaking of various ribs of the deceased, may not have been
caused by a single person.
F. The mobile phone recovered from Itarsi (M.P.) was not
deposited in the Malkhana.
G. The telephone number that had allegedly been purchased by
Sonia (deceased), and later recovered, showed some variance.
H. The journey from Faridabad to Itarsi and from Itarsi to
Faridabad has not been proved.
36Page 37
I. The Booking Register of the Taneja Guest House does not
prove that the appellant had stayed in the said Guest House.
41. We have examined the aforesaid discrepancies pointed out by
the learned counsel.
It may be stated herein that some of the issues
have been explained by the prosecution, however, no attempt was ever
made by the defence to put most of these issues to SI Vinod Kumar
(PW.20), the Investigating Officer in his cross-examination. It is
evident from his deposition that he had, in fact, answered all the
questions that were put to him in the cross-examination.
However, it
is pertinent to clarify that most of these questions that are being
currently raised before us were not put to him.
For example, he has
explained that nobody from the said market had been ready to become
the Panch witness for recovery of the mobile phone from Sonu’s shop
at Itarsi, and that even Sonu was not ready to do so.
Further, no
question had been put to him in the cross-examination regarding the
different EMEI number of the said mobile phone.
The mobile phone
that was recovered, bore the EMEI No. 3534000004033852 (Ex.P-
19), though the EMEI number of mobile phone that belonged to Sonia
was 3534000004033853.
Furthermore, no question had been put as
to why the mobile phone, after the recovery, had not been deposited in
37Page 38
the Malkhana. In light of such a fact situation, it is not permissible for
us to consider such discrepancies.
So far as the inconsistencies in the depositions of the witnesses
are concerned, none of them can be held to be material inconsistency.
42. The facts so established by the prosecution do not warrant
further review of the judgments of the courts below by this court. The
appeal lacks merit and is, accordingly, dismissed.
……………………………...J.
[DR. B.S. CHAUHAN]
...…….…….......................... J.
[DIPAK MISRA]
NEW DELHI;
MAY 29, 2013
38
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 896 of 2011
Rohtash Kumar …Appellant
Versus
State of Haryana …Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been filed against the judgment and order dated
5.2.2009 passed by the High Court of Punjab and Haryana at
Chandigarh in Criminal Appeal No. 862-DB of 2006, by which it has
affirmed the judgment and order of the Sessions Court, by way of
which and whereunder the appellant has been convicted for the
offences punishable under Sections 302 and 404 of the Indian Penal
Code, 1860 (hereinafter referred to as `the IPC’), and sentenced to
undergo life imprisonment and to pay a fine of Rs.5,000/-, and inPage 2
default of payment of fine, to undergo further rigorous imprisonment
for one year under Section 302 IPC; and was also sentenced to
undergo rigorous imprisonment for two years and to pay a fine of
Rs.500/-, and in default of payment of fine, to undergo further
rigorous imprisonment for three months under Section 404 IPC.
However, both the substantive sentences have been ordered to run
concurrently.
2. Facts and circumstances as per the prosecution in brief, are as
under:
A. Appellant got married to Sonia (since deceased), aged 30 years,
in March 2003. It was an inter-caste marriage, and thus, was not
approved of by Sonia’s family members. They had both studied
Pharmacy together. After passing the Pharmacy Course, Sonia
(deceased) was appointed as a Lecturer in the B.S.A. Pharmacy
College, Faridabad, and she was also working as a Warden in the
Girls’ hostel of the said Pharmacy College, situated in Kothi No. 783,
Sector 21-A, Faridabad. The married life of the couple was not happy
and they thus filed a Divorce Petition on the basis of mutual consent
under Section 13-B of the Hindu Marriage Act, 1955 before the
2Page 3
Family Court, Rohtak. The first motion was complete and the second
motion had been fixed for 3.9.2004.
B. On 2.9.2004, Sonia (deceased) sent a telephonic message to her
mother, Smt. Dhanpati Devi (PW.3), stating that in the previous
evening, the appellant Rohtash had come to meet her in the hostel at
8.00 P.M. and had told her that he would appear in the Family Court
at Rohtak on 3.9.2004, to make his statement for getting the divorce.
C. In view of the above, on 2.9.2004 at about 5.00 P.M., Sube
Singh (PW.1), father of Sonia (deceased), came alongwith his nephew
Wazir Singh to meet Sonia in her hostel at Faridabad. However, when
they reached there, Ghanshyam (Security Guard), Arjun (Cook) and
Bimla (Caretaker) of the hostel came and met them. Bimla (PW.8)
(Caretaker) told them that on the same day at about 1.00 P.M., the
appellant had come to the hostel to meet Sonia. Both of them had
engaged in conversation for about one hour, while sitting in the
verandah of the hostel and also had tea together. After the appellant
had left the hostel, Bimla (PW.8) had gone to bathroom to wash
clothes. Later on, when she had gone in search of Sonia (deceased),
she had found her lying dead among the plants, in the gallery of the
hostel. She had died of strangulation.
3Page 4
D. Sube Singh (PW.1), had gone to the police station and lodged a
complaint giving all the details, also stating that the appellant might
have committed the said offence, as she had scratch marks on her
neck, as well as on her breasts.
E. In view of the complaint made by Sube Singh (PW.1), an FIR
was registered (Ex.P-12). Necessary investigation was conducted,
statements of witnesses were recorded, and the postmortem
examination on the dead body of Sonia (deceased) was also
performed. The appellant was arrested only on 8.9.2004. The articles
collected from the place of occurrence and samples taken from the
appellant, particularly, specimens of his hair etc., were sent to the
Forensic Science Laboratory, Madhuban, for the preparation of an
FSL report. After completion of the investigation, a chargesheet was
filed against the appellant in court.
F. After committal proceedings, charges were framed against the
appellant under Sections 302 and 404 IPC. The prosecution examined
21 witnesses in support of its case, including the parents and relatives
of the deceased, as well as Dr. Virender Yadav (PW.4), Ms. Anita
Dahiya, the then Chief Judicial Magistrate, Faridabad (PW.17), Dr.
4Page 5
O.P. Sethi, (PW.21), and SI Vinod Kumar (PW.20), the investigating
officer. Some of the cited witnesses were given up, and a large
number of documents etc., were filed.
G. The appellant was examined under Section 313 of the Code of
Criminal Procedure, 1973, (hereinafter referred to as `the Cr.P.C.’),
and all the incriminating material/circumstances were put to him one
by one. He denied each allegation levelled against him by repeatedly
stating, “It is incorrect.” The appellant did not himself, adduce any
evidence in defence.
The learned Sessions Court, after appreciating all the evidence
and the submissions made by the public prosecutor and the defence
counsel, convicted and sentenced the appellant as has been referred to
hereinabove.
H. Aggrieved, the appellant preferred an Appeal before the High
Court, which has been dismissed vide impugned judgment and order
dated 5.2.2009.
Hence, this appeal.
3. Dr. Sushil Balwada, learned counsel appearing on behalf of the
appellant has submitted, that there was no eye-witness to the
5Page 6
occurrence and that the prosecution had failed to prove and meet the
parameters laid down by this Court for conviction in a case of
circumstantial evidence. Even if there had been some discord in their
marriage, they had agreed to separate mutually and the second motion
of the Divorce Petition filed by mutual consent, had been fixed for
next day i.e. 3.9.2004. Thus, there had been no occasion for the
appellant to commit the offence. The material witnesses to the
incident, particularly Ghanshyam and Arjun, who had been working
as the Guard and Cook respectively in the Girls’ hostel, and Mahender
(Attendant) of the Taneja Guest House, where the appellant is alleged
to have stayed under a fake name, have not been examined. The
prosecution was under an obligation to examine each of them. The
evidence of Jagatpal (PW.2), a hostile witness, could not have been
considered at all. In light of the facts of this case, the theory of “last
seen” together cannot be applied. Furthermore, the prosecution has
created an entirely improbable story to the effect that after killing
Sonia, the appellant had taken away her mobile phone, and had in the
evening on the same day, telephoned his mother-in-law Dhanpati
(PW.3), as well as several other relatives of Sonia, making an extrajudicial confession stating that he had killed Sonia, and that he would
6Page 7
now himself commit suicide. The recovery of mobile phone from
Itarsi (M.P.) cannot be relied upon, as this place is far away from
Faridabad. There are material inconsistencies in the statements of the
witnesses. The chain of circumstances is not complete. The
prosecution must prove its case beyond reasonable doubt, and cannot
take advantage of the weaknesses in the case of the defence. Thus,
the appeal deserves to be allowed.
4. Per contra, Shri Ramesh Kumar, learned counsel appearing on
behalf of the State, has opposed the appeal contending that the
appellant had last been seen with Sonia (deceased), by several persons
including Bimla (PW.8), in the hostel. The appellant had thereafter
left the hostel alone, just before Sonia had been found dead. The
appellant, after committing the offence, had run away and stayed at
the Taneja Guest House, Faridabad, under a fictitious name and by
providing a fake address. He had also made an attempt to commit
suicide in the said Guest House, and on being asked about the same by
the attendant, he had run away from there. The appellant had left his
diary and wrist watch, as well as a letter in the name of the
Superintendent of Police, the Deputy Commissioner of Faridabad, the
Chief Justice of the Punjab & Haryana High Court, and the Chairman
7Page 8
of the Human Rights Commission, complaining about the family
members of Sonia. The diary had also contained a suicide note. The
conduct of the appellant clearly indicates that he has committed the
offence. The concurrent findings of fact recorded by the courts below
do not warrant any interference and therefore, the appeal is liable to
be dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties, and perused the record.
Before we enter into the merits of the case and its factual
matrix, it is desirable to deal with the legal issues involved herein.
Case of Circumstantial evidence:
6. The present case is of circumstantial evidence, as there exists
no eye-witness to the occurrence. The primary issue herein involves
determination of the requirements for deciding a case of
circumstantial evidence.
7. This Court, in R. Shaji v. State of Kerala, AIR 2013 SC 651
has held, “the prosecution must establish its case beyond reasonable
doubt, and cannot derive any strength from the weaknesses in the
defence put up by the accused. However, a false defence may be
8Page 9
brought to notice, only to lend assurance to the Court as regards the
various links in the chain of circumstantial evidence, which are in
themselves complete. The circumstances on the basis of which the
conclusion of guilt is to be drawn, must be fully established. The same
must be of a conclusive nature, and must exclude all possible
hypothesis, except the one to be proved. Facts so established must be
consistent with the hypothesis of the guilt of the accused, and the
chain of evidence must be complete, so as not to leave any reasonable
ground for a conclusion consistent with the innocence of the accused,
and must further show, that in all probability, the said offence must
have been committed by the accused.”
(See also: Sharad Birdhichand Sarda v. State of Maharashtra,
AIR 1984 SC 1622; and Paramjeet Singh @ Pamma v. State of
Uttarakhand, AIR 2011 SC 200).
Thus, the Court while convicting a person on the basis of the
circumstantial evidence, must apply the aforesaid principles.
Whether prosecution must examine all the witnesses:
8. A common issue that may arise in such cases where some of the
witnesses have not been examined, though the same may be material
9Page 10
witnesses is, whether the prosecution is bound to examine all the
listed/cited witnesses.
This Court, in Abdul Gani & Ors. v. State of Madhya
Pradesh, AIR 1954 SC 31, has examined the aforesaid issue and held,
that as a general rule, all witnesses must be called upon to testify in
the course of the hearing of the prosecution, but that there is no
obligation compelling the public prosecutor to call upon all the
witnesses available who can depose regarding the facts that the
prosecution desires to prove. Ultimately, it is a matter left to the
discretion of the public prosecutor, and though a court ought to and no
doubt would, take into consideration the absence of witnesses whose
testimony would reasonably be expected, it must adjudge the evidence
as a whole and arrive at its conclusion accordingly, taking into
consideration the persuasiveness of the testimony given in the light of
such criticism, as may be levelled at the absence of possible material
witnesses.
9. In Sardul Singh v. State of Bombay, AIR 1957 SC 747, a
similar view has been reiterated, observing that a court cannot,
normally compel the prosecution to examine a witness which the
10Page 11
prosecution does not choose to examine, and that the duty of a fair
prosecutor extends only to the extent of examination of such
witnesses, who are necessary for the purpose of disclosing the story of
the prosecution with all its essentials.
10. In Masalti v. State of U.P., AIR 1965 SC 202, this Court held
that it would be unsound to lay down as a general rule, that every
witness must be examined, even though, the evidence provided by
such witness may not be very material, or even if it is a known fact
that the said witness has either been won over or terrorised. “In such
cases, it is always open to the defence to examine such witnesses as
their own witnesses, and the court itself may also call upon such a
witness in the interests of justice under Section 540 Cr.P.C.”.
(See also: Bir Singh & Ors. v. State of U.P., (1977) 4 SCC 420)
11. In Darya Singh & Ors. v. State of Punjab, AIR 1965 SC 328,
this Court reiterated a similar view and held that if the eye-witness(s)
is deliberately kept back, the Court may draw inference against the
prosecution and may, in a proper case, regard the failure of the
prosecutor to examine the said witnesses as constituting a serious
infirmity in the proof of the prosecution case.
11Page 12
12. In Raghubir Singh v. State of U.P., AIR 1971 SC 2156, this
Court held as under:
“…Material witnesses considered necessary by the
prosecution for unfolding the prosecution story alone
need be produced without unnecessary and redundant
multiplication of witnesses. The appellant's counsel has
not shown how the prosecution story is rendered less
trustworthy as a result of the non-production of the
witnesses mentioned by him. No material and important
witness was deliberately kept back by the prosecution.
Incidentally we may point out that the accused too have
not considered it proper to produce those persons as
witnesses for controverting the prosecution version…..”
(Emphasis added)
13. In Harpal Singh v. Devinder Singh & Anr., AIR 1997 SC
2914, this Court reiterated a similar view and further observed:
“….The illustration (g) in Section 114 of the Evidence
Act is only a permissible inference and not a necessary
inference. Unless there are other circumstances also to
facilitate the drawing of an adverse inference, it should
not be a mechanical process to draw the adverse
inference merely on the strength of non-examination of a
witness even if it is a material witness…..”
14. In Mohanlal Shamji Soni v. Union of India & Anr., AIR
1991 SC 1346, this Court held:
“10. It is cardinal rule in the law of evidence that the
best available evidence should be brought before the
Court to prove a fact or the points in issue. But it is left
either for the prosecution or for the defence to establish
its respective case by adducing the best available
12Page 13
evidence and the Court is not empowered under the
provisions of the Code to compel either the prosecution
or the defence to examine any particular witness or
witnesses on their sides. Nonetheless if either of the
parties withholds any evidence which could be produced
and which, if produced, be unfavourable to the party
withholding such evidence, the Court can draw a
presumption under illustration (g) to Section 114 of the
Evidence Act…. In order to enable the Court to find out
the truth and render a just decision, the salutary
provisions of Section 540 of the Code (Section 311 of the
new Code) are enacted whereunder any Court by
exercising its discretionary authority at any stage of
enquiry, trial or other proceeding can summon any
person as a witness or examine any person in attendance
though not summoned as a witness or recall or reexamine any person in attendance though not summoned
as a witness or recall and re-examine any person already
examined who are expected to be able to throw light
upon the matter in dispute; because if judgments happen
to be rendered on inchoate, inconclusive and speculative
presentation of facts, the ends of justice would be
defeated.”
15. In Banti @ Guddu v. State of M.P., AIR 2004 SC 261, this
Court held:
“In trials before a Court of Session the prosecution
"shall be conducted by a Public Prosecutor". Section 226
of the Code of Criminal Procedure, 1973 enjoins on him
to open up his case by describing the charge brought
against the accused. He has to state what evidence he
proposes to adduce for proving the guilt of the accused.
……If that version is not in support of the prosecution
case it would be unreasonable to insist on the Public
Prosecutor to examine those persons as witnesses for
prosecution.
13Page 14
When the case reaches the stage envisages in
Section 231 of the Code the Sessions Judge is obliged "to
take all such evidence as may be produced in support of
the prosecution". It is clear form the said section that the
Public Prosecutor is expected to produce evidence "in
support of the prosecution" and not in derogation of the
prosecution case. At the said stage the Public Prosecutor
would be in a position to take a decision as to which
among the presence cited are to be examined. If there
are too many witnesses on the same point the Public
Prosecutor is at liberty to choose two or some among
them alone so that the time of the Court can be saved
from repetitious depositions on the same factual aspects.
……This will help not only the prosecution in relieving
itself of the strain of adducing repetitive evidence on the
same point but also help the Court considerably in
lessening the workload. Time has come to make every
effort possible to lessen the workload, particularly those
courts crammed with cases, but without impairing the
cause of justice. ……It is open to the defence to cite him
and examine him as a defence witness……..”
16. The said issue was also considered by this Court in R. Shaji
(supra), and the Court, after placing reliance upon its judgments in
Vadivelu Thevar v. State of Madras; AIR 1957 SC 614; and Kishan
Chand v. State of Haryana, JT 2013( 1) SC 222), held as under: .
“22. In the matter of appreciation of evidence of
witnesses, it is not the number of witnesses, but the
quality of their evidence which is important, as there is
no requirement in the law of evidence stating that a
particular number of witnesses must be examined in
order to prove/disprove a fact. It is a time-honoured
principle, that evidence must be weighed and not
counted. The test is whether the evidence has a ring of
truth, is cogent, credible and trustworthy, or otherwise.
14Page 15
The legal system has laid emphasis on the value provided
by each witness, as opposed to the multiplicity or
plurality of witnesses. It is thus, the quality and not
quantity, which determines the adequacy of evidence, as
has been provided by Section 134 of the Evidence Act.
Where the law requires the examination of at least one
attesting witness, it has been held that the number of
witnesses produced over and above this, does not carry
any weight.”
17. Thus, the prosecution is not bound to examine all the cited
witnesses, and it can drop witnesses to avoid multiplicity or plurality
of witnesses. The accused can also examine the cited, but not
examined witnesses, if he so desires, in his defence. It is the discretion
of the prosecutor to tender the witnesses to prove the case of the
prosecution and “the court will not interfere with the exercise of that
discretion unless, perhaps, it can be shown that the prosecution has
been influenced by some oblique motive.” In an extra-ordinary
situation, if the court comes to the conclusion that a material witness
has been withheld, it can draw an adverse inference against the
prosecution, as has been provided under Section 114 of the Evidence
Act. Undoubtedly, the public prosecutor must not take the liberty to
“pick and choose” his witnesses, as he must be fair to the court, and
therefore, to the truth. In a given case, the Court can always examine
a witness as a court witness, if it is so warranted in the interests of
15Page 16
justice. In fact, the evidence of the witnesses, must be tested on the
touchstone of reliability, credibility and trustworthiness. If the court
finds the same to be untruthful, there is no legal bar for it to discard
the same.
Discrepancies in the depositions:
18. It is a settled legal proposition that while appreciating the
evidence of a witness, minor discrepancies on trivial matters which do
not affect the core of the case of the prosecution, must not prompt the
court to reject the evidence in its entirety. Therefore, unless irrelevant
details which do not in any way corrode the credibility of a witness
should be ignored. The court has to examine whether evidence read as
a whole appears to have a ring of truth. Once that impression is
formed, it is undoubtedly necessary for the court to scrutinize the
evidence more particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the evidence as a whole and
evaluate them to find out whether it is against the general tenor of the
evidence given by the witnesses and whether the earlier evaluation of
the evidence is shaken, as to render it unworthy of belief. Thus, the
court is not supposed to give undue importance to omissions,
contradictions and discrepancies which do not go to the heart of the
16Page 17
matter, and shake the basic version of the prosecution witness. Thus,
the court must read the evidence of a witness as a whole, and consider
the case in light of the entirety of the circumstances, ignoring the
minor discrepancies with respect to trivial matters, which do not affect
the core of the case of the prosecution. The said discrepancies as
mentioned above, should not be taken into consideration, as they
cannot form grounds for rejecting the evidence on record as a whole.
(See: State of U.P. v. M.K. Anthony, AIR 1985 SC 48; State rep. by
Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; and
Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191).
Evidence of a hostile witness:
19. It is a settled legal proposition that evidence of a prosecution
witness cannot be rejected in toto, merely because the prosecution
chose to treat him as hostile and cross examined him. The evidence of
such witnesses cannot be treated as effaced, or washed off the record
altogether. The same can be accepted to the extent that their version
is found to be dependable, upon a careful scrutiny thereof.
20. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996
SC 2766, this Court held, that evidence of a hostile witness would not
17Page 18
be rejected in entirety, if the same has been given in favour of either
the prosecution, or the accused, but is required to be subjected to
careful scrutiny, and thereafter, that portion of the evidence which is
consistent with the either case of the prosecution, or that of the
defence, may be relied upon. (See also: C. Muniappan & Ors. v.
State of Tamil Nadu, AIR 2010 SC 3718; Himanshu @ Chintu v.
State (NCT of Delhi), (2011) 2 SCC 36; and Ramesh Harijan v.
State of U.P., AIR 2012 SC 1979).
Therefore, the law permits the court to take into consideration
the deposition of a hostile witness, to the extent that the same is in
consonance with the case of the prosecution, and is found to be
reliable in careful judicial scrutiny.
Motive:
21. The evidence regarding the existence of a motive which
operates in the mind of the accused is very often very limited, and
may not be within the reach of others. The motive driving the accused
to commit an offence may be known only to him and to no other. In a
case of circumstantial evidence, motive may be a very relevant factor.
However, it is the perpetrator of the crime alone who is aware of the
circumstances that prompted him to adopt a certain course of action,
18Page 19
leading to the commission of the crime. Therefore, if the evidence on
record suggests adequately, the existence of the necessary motive
required to commit a crime, it may be conceived that the accused has
in fact, committed the same. (Vide: Subedar Tewari v. State of U.P.
& Ors., AIR 1989 SC 733; Suresh Chandra Bahri v. State of
Bihar, AIR 1994 SC 2420; and Dr. Sunil Clifford Daniel v. State of
Punjab, (2012) 11 SCC 205).
Explanation of the accused:
22. It is obligatory on the part of the accused while being examined
under Section 313 Cr.P.C., to furnish some explanation with respect to
the incriminating circumstances associated with him, and the court
must take note of such explanation even in a case of circumstantial
evidence, to decide whether or not, the chain of circumstances is
complete. [Vide: Musheer Khan @ Badshah Khan & Anr. v. State
of Madhya Pradesh, AIR 2010 SC 762; and Dr. Sunil Clifford
Daniel (supra)].
23. This Court, in State of Maharashtra v. Suresh, (2000) 1 SCC
471, held as under:
“When the attention of the accused is drawn to such
circumstances that inculpate him in relation to the
19Page 20
commission of the crime, and he fails to offer an
appropriate explanation or gives a false answer with
respect to the same, the said act may be counted as
providing a missing link for completing the chain of
circumstances.”
Undoubtedly, the prosecution has to prove its case beyond
reasonable doubt. However, in certain circumstances, the accused has
to furnish some explanation to the incriminating circumstances, which
has come in evidence, put to him. A false explanation may be counted
as providing a missing link for completing a chain of circumstances.
Last seen together theory:
24. In cases where the accused was last seen with the deceased
victim (last seen-together theory) just before the incident, it becomes
the duty of the accused to explain the circumstances under which the
death of the victim occurred. (Vide: Nika Ram v. State of Himachal
Pradesh, AIR 1972 SC 2077; and Ganeshlal v. State of
Maharashtra, (1992) 3 SCC 106).
25. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006)
10 SCC 681, this Court held as under:
“Where an accused is alleged to have committed the
murder of his wife and the prosecution succeeds in
20Page 21
leading evidence to show that shortly before the
commission of crime they were seen together or the
offence takes place in the dwelling home where the
husband also normally resided, it has been consistently
held that if the accused does not offer any explanation
how the wife received injuries or offers an explanation
which is found to be false, it is a strong circumstance
which indicates that he is responsible for commission of
the crime.”
(See also: Prithipal Singh & Ors. v. State of Punjab & Anr.,
(2012) 1 SCC 10)
Thus, the doctrine of “last seen together” shifts the burden of
proof on the accused, requiring him to explain how the incident had
occurred. Failure on the part of the accused to furnish any
explanation in this regard, would give rise to a very strong
presumption against him.
Police official as a witness:
26. The term witness, means a person who is capable of providing
information by way of deposing as regards relevant facts, via an oral
statement, or a statement in writing, made or given in Court, or
otherwise.
In Pradeep Narayan Madgaonkar & Ors. v. State of
Maharashtra, AIR 1995 SC 1930, this Court examined the issue of
21Page 22
the requirement of the examination of an independent witness, and
whether the evidence of a police witness requires corroboration. The
Court herein held, that the same must be subject to strict scrutiny.
However, the evidence of police officials cannot be discarded merely
on the ground that they belonged to the police force, and are either
interested in the investigating or the prosecuting agency. However, as
far as possible the corroboration of their evidence on material
particulars, should be sought.
(See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212;
Balbir Singh v. State, (1996) 11 SCC 139; Kalpnath Rai v. State
(Through CBI), AIR 1998 SC 201; M. Prabhulal v. Assistant
Director, Directorate of Revenue Intelligence, AIR 2003 SC 4311;
and Ravinderan v. Superintendent of Customs, AIR 2007 SC
2040).
Thus, a witness is normally considered to be independent,
unless he springs from sources which are likely to be tainted and this
usually means that the said witness has cause, to bear such enmity
against the accused, so as to implicate him falsely. In view of the
above, there can be no prohibition to the effect that a policeman
cannot be a witness, or that his deposition cannot be relied upon.
22Page 23
27. The instant case requires to be considered in light of the
aforesaid settled legal propositions.
Sube Singh (PW.1), father of Sonia, deceased, had sufficient
reason to go to go to Faridabad to meet his daughter, in view of the
fact that the second motion of divorce between the appellant and the
deceased was fixed for next day, and Sonia, deceased had telephoned
her mother regarding the arrival of the appellant one day before,
stating that she had doubts about the promise made by the appellant to
the extent that he would make a statement before the Family Court at
Rohtak, to facilitate their divorce by mutual consent. It is but natural
for any parent, even if they dis-approve of the inter-caste marriage of
their children, to want to be with them at the time of such
proceedings, that would affect the life of their child. Sube Singh
(PW.1) has further deposed, that the police had recovered clothes,
rope, handkerchief, hairpin and blood stained earth etc. from the place
of occurrence, and had kept these articles in separate parcels.
28. Dhanpati (PW.3), mother of the deceased, has corroborated the
deposition of Sube Singh (PW.1), and has further deposed, that she
had received a phone call from the accused which had been made
23Page 24
from the mobile phone number that had belonged to Sonia deceased.
On being asked, about the same by her, he had told her that he had
murdered Sonia in her hostel by strangulating her, and that thereafter,
he had run away from the place of occurrence. He had also stated that
he would commit suicide.
29. Bimla (PW.8), the caretaker of the hostel, has deposed that
while she was working as a caretaker in the Girls’ hostel, on 1.9.2004
at about 8-9 p.m., Sonia (deceased) had come to the hostel and
immediately had gone to make a phone call. After about 10 minutes,
her husband, i.e., the appellant accused had reached there. They had
engaged in some conversation. The next day, Sonia had come back
from college at about 1.00 p.m., and shortly after, the appellant had
also arrived there. Ghanshyam, the watchman had been told by the
appellant that he was husband of the warden and wanted to meet her.
Ghanshyam had not initially permitted him to enter the hostel, but had
allowed his entry after taking permission from Sonia. The appellant
and Sonia had then sat together in the verandah of the hostel, and had
spoken for about 30-40 minutes. Both of them had then left the hostel,
and had returned only after about one hour. After their arrival, the
witness had served them tea. Thereafter, she had gone to bathroom to
24Page 25
wash clothes, and when she returned after about 20-25 minutes, she
had enquired from Ghanshyam regarding the whereabouts of Sonia
and her husband. She had then been told that Sonia was in her room,
whereas the appellant had already left the hostel alone. While going
Sonia’s room, she had found her lying dead in the garden, near the
plants in the hostel. Seeing her dead, the witness was frightened.
30. Mukesh Chand (PW.9), has proved the pendency of the case for
divorce by mutual consent before the Family Court, Rohtak and the
fact that the date of the second motion had been fixed for 3.9.2004.
31. Narender Singh (PW.12), is the brother-in-law of Sonia
(deceased). He has deposed that he had received a phone call at about
5.30 p.m. on 2.9.2004, from the mobile phone number belonging to
Sonia. The said phone call had been made by the appellant, and he
had informed the witness that he had killed Sonia, and had further told
him he had also had an illicit relationship with the wife of the witness.
The witness has deposed, that on hearing this, he had lost his temper
and had used abusive language in relation to the appellant, after which
he had disconnected the call.
25Page 26
Virender Singh (PW.19), a relative of Sonia’s, had also
received a similar phone call from the appellant from the mobile
phone number belonging to of Sonia.
32. Ms. Anita Dahiya (PW.17), the then Chief Judicial Magistrate,
Faridabad, has deposed that the investigating officer had wanted to
have an identification parade, but that the appellant had not agreed to
the same.
33. Jagatpal (PW.2), an attendant at the Taneja Rest House, NIT,
Faridabad, has deposed in his examination-in-chief that a person had
stayed in the said guest house, after disclosing his identity as Amit,
and by providing his address as 535, Model Town, Simla. He had
even made the requisite entries in the register in his own handwriting.
As regards the rest of the situation, he has stated that since his duty
was then over, his colleague Mahender, had come on duty at 9.00 a.m.
on 2.9.2004, and that therefore, he had no further information to offer.
At this stage, he was declared hostile as it was found that he was
suppressing the truth and thus, he was cross-examined. Undoubtedly,
he has turned hostile. However, he has admitted that on 2.9.2004, at
about 6.30 p.m., attendant Mahender had come to his place, and had
26Page 27
told him that the occupant of room no. 114 was attempting to commit
suicide, and this was when he, alongwith Mahender had gone to his
room. The appellant had thereafter, run away from the guest house.
They had tried to chase him but in vain. From his room, one diary, a
letter and wrist watch were recovered, and the said articles were
handed over to the police vide memo Ex.P5, which bore his
signature.
34. Dr. Virender Yadav (PW.4), had conducted the post-mortem
examination on the body of Sonia, and he has deposed that there was
bleeding with clotted blood present in the bilateral nostrils, and on the
right side of the mouth. Rigor mortis was present in all the four limbs
with postmortem staining on dependent parts. Multiple abrasions were
present on the front of the neck, with large reddish contusionsbilateral shoulders, more on the right side. Abrasions numbering four
of the size 2.5 x 0.75 cms., were present on the right side, just below
the clavicle and four of these in number were present on its left side.
On dissection, the muscle of the neck was contused with
hemorrhage with a fracture of the thyroid cartilage, and a fracture of
the tracheal rings with blood clots in the trachea. The adjoining
muscles and upper chest muscles were contused extensively with
27Page 28
blood clots, with bilateral fractures of the clavicle bone and the upper
second and third ribs.
In his opinion, the cause of death was asphyxia caused as a
result of smothering and throttling, which was ante-mortem in nature
and was sufficient to cause death in the natural course.
He has further deposed, that she had died within two minutes of
the offence, and before 24 hours of the post-mortem.
35. There is evidence on record to show that the mobile phone had
been purchased by Sonia from Itarsi on 10.9.2004. The same mobile
phone was recovered from the shop of Sonu at Itarsi upon the
disclosure statement made by the appellant, vide recovery memo
Ex.P-19.
36. In view of the aforesaid depositions, facts emerge as under:-
(i) The appellant and Sonia (deceased) had been classmates and
had developed intimacy. In spite of the fact that they belonged to
different castes, they had thereafter gotten married, knowing fully
well that their marriage would not be approved by at least one of the
two families.
28Page 29
(ii) Their marriage was not cordial and within an year of such
marriage, they had mutually decided to separate and had thus, filed a
petition for divorce by mutual consent under Section 13-B of the
Hindu Marriage Act, 1955, before the Family Court, Rohtak. The
first motion was clear, and the case was fixed for second motion on
3.9.2004. Just before the said date, the appellant had met Sonia
(deceased), and had assured her that he would agree to the said
divorce in the second motion on 3.9.2004, before the Family Court at
Rohtak.
(iii) The said information was furnished by Sonia (deceased), to her
mother Smt. Dhanpati Devi (PW.3), and it was in view thereof that
Sube Singh (PW.1), father of the deceased had come to Faridabad
only to meet Sonia.
(iv) While reaching there, Sube Singh (PW.1) had been informed by
Ghanshyam (Security Guard), Arjun (Cook) and Bimla, Caretaker
(PW.8), that the appellant had come to meet Sonia, and that now she
was lying dead in the garden. Bimla (PW.8) had also furnished him
with all the requisite details, as regards the visit of the appellant. Sube
29Page 30
Singh, father of the deceased, had lodged an FIR. Hence, criminal
law was set into motion and the investigation began.
(v) The Police had recovered the dead body, as well as various
material objects lying near it, including a rope.
(vi) The post-mortem report suggests that Sonia had died of
asphyxia caused as a result of smothering and throttling, and that it
had taken hardly any time to kill her.
(vii) The appellant had stayed at the Taneja Guest House, by
providing a fictitious name and address, and the next day had tried to
commit suicide. He had been chased by the hostel staff, but had
managed to run away. While running away, he had left a diary (Ex.P-
54), a wrist watch (Ex.P-56), and a letter (Ext.P-55).
(viii) On 2.9.2004, the appellant had made certain telephone calls
from the mobile phone belonging to Sonia, to the mother as well as to
several other relatives of the deceased, informing them about the
murder of Sonia that had been committed by him, and had further
stated that he would commit suicide.
30Page 31
(ix) A diary (Ex. P-54), a letter (Ex.P-55) and a wrist watch (Ex.P-
56), belonging to the appellant were recovered from the Taneja Guest
House. A suicide note had been written in the said diary by the
appellant, and a letter had also been written by him to the
Superintendent of Police, Faridabad, the District Collector, the Chief
Justice, High Court of Punjab & Haryana, and the Human Rights
Commissioner, suggesting his involvement. The recovery memo of
the same (Ex.P-5), bears the signatures of Jagatpal (PW.2) and
Mahender Singh, employees of the Taneja Guest House, Faridabad.
(x) The appellant had remained absconding for several days, and
after his apprehension, the mobile phone belonging to Sonia was
recovered from the shop of Sonu at Itarsi, Madhya Pradesh on the
basis of a disclosure statement made by him. The disclosure
statement made by the appellant on the basis of which the recovery
was made, bears the signatures of the appellant and of a police
personnel as a witness.
(xi) The call records clearly prove that the mobile phone belonging
to Sonia (deceased), had been used even after her death and that the
same had been in the possession of the appellant, as no body else
31Page 32
could have used the same. Sonia had died before 2.30 p.m. on
2.9.2004. The call records of her telephone, which have been
exhibited before the court, clearly disclose the outgoing calls that
were made from her telephone to her mother and other relatives, as
has been referred to hereinabove at 1620.55; 1625.47; 1637.17;
1707.46; and 1744.03 as Exh.P.21.
(xii) During the investigation, the appellant had refused to participate
in the Test Identification Parade, as he could have been identified by
Ghanshyam (Security Guard) of the hostel, Arjun (Cook) and Bimla,
Caretaker (PW.8), as well as by the staff of the Taneja Guest House.
(xiii) Jagatpal (PW.2), though had turned hostile, has provided
material information, and has also accepted his signatures on the
recovery memo and his statements, as well as those of Mahender, the
other attendant.
(xiv) The appellant has given a specimen of his hair to be compared
with the hair recovered from the place of occurrence, and the FSL
report (Ex.P-8) that was tendered as evidence has showed, that the
hair that was recovered from the place of occurrence, was found to be
32Page 33
similar in most of its morphological and microscopical characteristics,
to the sample of the hair provided by the appellant.
37. In view of the aforesaid factors, the Trial Court, as well as the
High Court, have convicted the appellant and awarded the sentences
as referred to hereinabove.
We have also been taken through the evidence on record, as
well as through the judgments of the courts below. Bimla, Caretaker
(PW.8), is definitely an independent witness. She had “last seen
together” the appellant and Sonia (deceased), just before her death,
and we do not see any reason to doubt the veracity of her statement. It
is also on record that the appellant had left alone from the hostel. The
appellant has not furnished any explanation with respect to what could
have happened to Sonia (deceased) while she was with him, if he was
not responsible for her death. No explanation was furnished by him
as regards why he had stayed at the Taneja Guest House, by providing
a fictitious name and false address and nor was any explanation
provided by him with respect to the circumstances under which, the
mobile phone belonging to Sonia, had come to be in his possession.
Admittedly, this is a case of a love marriage which had gone wrong.
Owing to such marital discord, they had decided to separate and to get
33Page 34
divorce by mutual consent. Therefore, it might have been frustration
which had forced the appellant to commit such a heinous crime.
38. From the undelivered letter that had been written by the
appellant in the name of Superintendent of Police and to others, in
Ex.P-54 recovered from the Taneja Guest House, it is evident that the
appellant had developed intimacy with Sonia (deceased) much earlier,
and had claimed to have married her in a temple, though, the formal
marriage between them had taken place in the year 2003. The said
letter reveals, that Sonia (deceased) and her family members had
tortured him mentally, and had extracted a huge amount of money
from him over a period of the past ten years. He had even persuaded
his friends, relatives and family members to give a loan to the
complainant, Sube Singh, which had never been returned by him.
Several threats had been made to the appellant by the family of the
deceased stating that they would involve him in a false dowry demand
case, eliminate him. The family members of the appellant had
severed all relations with him.
In the suicide note (Ex.P-55), the same story has been depicted.
Thus, the feelings of the appellant towards Sonia (deceased), and her
34Page 35
family members were such, that they could have given rise to a
motive for him to commit the said offence.
39. The non-examination of Sonu, from whose shop, the mobile
phone was recovered, cannot be said to be fatal for the reason that the
recovery memo bears the signature of the appellant himself. One
police Head Constable has also signed the same as a witness, and it is
not the case of the appellant that he had been forced to sign the said
recovery memo. Similarly, we do not find any force in the
submissions advanced on behalf of the appellant, stating that the nonexamination of Ghanshyam and Arjun from the girls’ hostel, or of
Mahender from the Taneja Guest House, requires the court to draw
adverse inference, as there is no need to provide the same evidence in
multiplicity. The appellant could have examined them or some of
them as defence witnesse(s). However, no such attempt was made on
his part.
40. A large number of discrepancies have been pointed out by the
learned counsel appearing on behalf of the appellant, and some of
them are reproduced as under:
35Page 36
A. The entry register maintained in the Girls Hostel for visitors
was never produced in court.
B. The finger prints taken from the glass and tea cups recovered
from the hostel, to prove that the same had been used by the
appellant, did not test positive.
C. The rope allegedly used in the crime, was not recovered, nor
has any positive evidence been produced to show that the
appellant had gone to the hostel armed with a rock.
D. A large number of girl students had been staying in the hostel,
and none of them were examined.
E. The postmortem report does not in any way prove the case of
the prosecution, for the reason that the throttling, smothering
and breaking of various ribs of the deceased, may not have been
caused by a single person.
F. The mobile phone recovered from Itarsi (M.P.) was not
deposited in the Malkhana.
G. The telephone number that had allegedly been purchased by
Sonia (deceased), and later recovered, showed some variance.
H. The journey from Faridabad to Itarsi and from Itarsi to
Faridabad has not been proved.
36Page 37
I. The Booking Register of the Taneja Guest House does not
prove that the appellant had stayed in the said Guest House.
41. We have examined the aforesaid discrepancies pointed out by
the learned counsel.
It may be stated herein that some of the issues
have been explained by the prosecution, however, no attempt was ever
made by the defence to put most of these issues to SI Vinod Kumar
(PW.20), the Investigating Officer in his cross-examination. It is
evident from his deposition that he had, in fact, answered all the
questions that were put to him in the cross-examination.
However, it
is pertinent to clarify that most of these questions that are being
currently raised before us were not put to him.
For example, he has
explained that nobody from the said market had been ready to become
the Panch witness for recovery of the mobile phone from Sonu’s shop
at Itarsi, and that even Sonu was not ready to do so.
Further, no
question had been put to him in the cross-examination regarding the
different EMEI number of the said mobile phone.
The mobile phone
that was recovered, bore the EMEI No. 3534000004033852 (Ex.P-
19), though the EMEI number of mobile phone that belonged to Sonia
was 3534000004033853.
Furthermore, no question had been put as
to why the mobile phone, after the recovery, had not been deposited in
37Page 38
the Malkhana. In light of such a fact situation, it is not permissible for
us to consider such discrepancies.
So far as the inconsistencies in the depositions of the witnesses
are concerned, none of them can be held to be material inconsistency.
42. The facts so established by the prosecution do not warrant
further review of the judgments of the courts below by this court. The
appeal lacks merit and is, accordingly, dismissed.
……………………………...J.
[DR. B.S. CHAUHAN]
...…….…….......................... J.
[DIPAK MISRA]
NEW DELHI;
MAY 29, 2013
38
