Mr. Joginder Tuli, Ms Joshini Tuli, Ms. Taniya Qureshi and Mr. Nishant, Advocates v. THE STATE

Judgment

1. The Appellant has approached this Court challenging the Judgment dated 25.08.2003 and the Order on Sentence dated 26.08.2003 passed by the learned Additional Sessions Judge, Delhi (hereinafter referred to as “learned Trial Court”) in SC No. 05/2000 arising out of FIR No. 45/2000 registered at Police Station Uttam Nagar for offences under Section 302, 201 & 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”).

2. Shorn of unnecessary details, the facts leading up to the present Appeal are as follows :- i. On 25.11.1999, one Mrs Beena (hereinafter referred to as “PW- 9/Beena”) lodged a report at Police Station Uttam Nagar, stating that CRL.A. 624/2003 on 20.11.1999, her husband, namely Shanker Singh, had gone to B- 350, Mohan Garden and did not return home. ii. In the description provided to the police, she stated that her husband had a round face, was slim built and about 5 feet and 4 inches tall. She also stated that her husband was wearing a cream coloured shirt, maroon coloured pants and leather sandals. The report was noted down by the police vide DD No. 9A. iii. On 26.11.1999, the Nangloi police recovered a dead body from Ganda Nala (open sewer), Sainik Enclave. Information to this effect was recorded vide DD No. 12A. The body was sent to Subzi Mandi Mortuary, where the body was preserved. Thereafter, on 29.11.1999 a post mortem was conducted, photographs were taken and the body was cremated. iv. PW-9/Beena was informed by her brother Ravinder and Jagveer that Uttam Nagar police had told them that a dead body, whose photographs they were carrying, was recovered two months ago and the same could not be identified. v. Subsequently, PW-9/Beena was taken to Police Station Nangloi where she was shown photographs of the dead body. PW-9/Beena identified the person in the photographs as her husband, Shanker Singh (hereinafter referred to as “the deceased”). She was also shown the clothes recovered from the body, which she confirmed belonged to the deceased. vi. A case under Section 302/201/34 IPC was registered by the police at Uttam Nagar, as the doctor who conducted the post-mortem gave an CRL.A. 624/2003 opinion that the cause of death was asphyxia resulting from strangulation. vii. The Appellant was arrested on 01.02.2000, following which he made a disclosure statement and led the police to the place of occurrence. viii. In his disclosure statement the Appellant admitted that he, along with his brother Pawan strangled the deceased after calling him to house No. B-350, Mohan Garden, which belonged to the Appellant’s brother-in-law (hereinafter referred to as “the house at Mohan Garden”) where the deceased was called in the capacity of a halwai at the marriage of the Appellant’s niece on 20.11.1999. ix. As per the Prosecution’s story, on the intervening night of 20/21.11.1999, the Appellant and the deceased drank alcohol together, whereafter they had a quarrel. PW-18/Vinod Singh and Ghanshyam, who were assisting the deceased as helpers, noticed the said quarrel. After finishing their work at about 10-11 PM, they asked the deceased if they could leave for home. The deceased is stated to have told them that they could spent the night at the house whereafter they slept on two cots outside the house, in an open plot. PW-18/Vinod Singh and Ghanshyam slept on one cot while the Appellant and the deceased slept on another cot. At about 3 AM on the intervening night of 20/21.11.1999, the Appellant’s brother Pawan gagged the deceased’s mouth, while the Appellant used the deceased’s muffler to strangle him to death. Thereafter, the Appellant and his brother used a rickshaw to transport and dump the body in a Ganda Nala at Sainik Enclave. CRL.A. 624/2003 x. After the recovery of the body and its identification from photographs by PW-9/Beena, the Appellant was arrested by the police and his disclosure statement was recorded. On the basis of this disclosure statement, the muffler of the deceased which was allegedly used to strangle him was recovered. xi. The purported motive behind the murder was an illicit relationship between the Appellant and PW-9/Beena. xii. While the Appellant was arrested, his brother Pawan could not be traced and was declared as a proclaimed offender. Pawan was later arrested, tried and acquitted for want of evidence. xiii. Charges under Section 302, 201 and 34 of the IPC were framed against the Appellant on 24.05.2000. xiv. During the trial, 19 Prosecution Witnesses were examined and the statement of the Appellant under Section 313 of the Criminal Procedure Code, 1973 (hereinafter referred to as the “Cr.P.C.”), was recorded. xv. The Appellant denied the charges levelled against him as well as the fact that he accompanied the deceased or that he consumed alcohol with the deceased. The Appellant also denied that the muffler of the deceased was recovered at his instance. He alleged that he was being falsely implicated. However, he did not lead any defence in support of his plea of false implication. xvi. Since there was no direct evidence which could link the Appellant with the commission of the offence, the entire case of the Prosecution was based on circumstantial evidence. CRL.A. 624/2003

3. The Trial Court, in order to bring home the conviction of the Appellant, has primarily relied on a conjoint reading of the testimonies of PW-9/Beena, PW-10/Vikas, PW-12/HC Kuldeep Singh and PW-18/Vinod Singh. The learned Trial Court has also relied on the disclosure statement given by the Appellant and the resultant recovery of the muffler of the deceased that is purported to have been used as the murder weapon.

The learned Trial Court held that it had been conclusively proved that the Appellant and deceased were together on the intervening night of

20.11.1999 and 21.11.1999. The learned Trial Court also noted that the Appellant had made different statements to different witnesses regarding the whereabouts of the deceased. This, in the view of the learned Trial Court, clearly established that Appellant knew that deceased had been murdered by him, and the deceased’s dead body had been thrown in the Ganda Nala and that is the reason why on first enquiry by PW-18/Vinod and Ghanshyam, the co-workers of deceased, the Appellant told them that the deceased had left the house in the night. On the subsequent enquiry made by Vikas, the son of the deceased had gone somewhere for work and would return after 2 to 3 days and thereafter, the Appellant visited PW-9/Beena, the wife of the deceased and made enquiries from her as to why the deceased had not turned up for work at the place of marriage. The relevant portion of the judgement of the Trial Court reads as under: “67. The different statements, made by accused Sudesh about the whereabouts of Shankar, clearly establish that accused Sudesh knew that Shankar had been murdered by him and his dead body has been thrown in the Ganda Nullah and that is the reason that on first enquiry by Vinod and Ghanhsyam, the co-workers of deceased, accused Sudesh had disclosed to them that CRL.A. 624/2003 Shankar had left the place in the night. The subsequent enquiry made by the son of the deceased from accused Sudesh is to the effect that Shankar had gone somewhere for work. He will return after 2/3 days. Sudesh insisted that the son of the deceased should receive the amount of the work done by the son of the deceased because his father is to return after few days. Then the visit of the accused Sudesh to the house of wife of the deceased and making enquiry from her as to why Shankar had not turned up for work at the place of marriage and her reply that Shankar is already at the work and has not returned in the night and then another statement, made by accused Sudesh, that Shankar was with him upto 2 pm and thereafter he had left and the fourth stand taken by the accused that the deceased had gone to work somewhere and will return after few days, as told by him to the son of the deceased, clearly prove the accused was improving upon his statements to conceal the facts that Shankar has already been murdered by him and that is why on various dates and times whenever he was asked about the whereabouts of Shankar, he had stated different facts at different times.

68. Now, coming to the motive part of the accused, it can be seen that as per the statement made by Veena, she was residing at the house owned by maternal uncle of the accused and was a tenant in the said house for several years and this accused had been visiting her at the said place and the statement made by Smt.Veena that the visits of accused were not liked by her husband and thereafter, after disappearance of Shankar, the visit the of the accused to the house of his wife and first making enquiry from the son of the deceased as to where his father had gone and thereafter the accused going upstairs contacting the wife of the deceased and putting some questions to her as to where her husband had gone, clearly prove that there had been some intimacy between the accused and the wife of the CRL.A. 624/2003 deceased and the accused wanted to eliminate the obstacle in his way of meeting the wife of the deceased and so he murdered Shankar.

69. In the statements, made by the witnesses, and the disclosure statement, made by the accused, these facts have been revealed by both the witnesses and by the accused, but, in the statement, made before the court, Smt. Veena has not supported this portion. She was cross examined on this point that Sudesh had been visiting her and his visits were not liked by her husband, has been denied by her, but the fact remains that when Shankar had been with the accused on 20.11.99, he had already told Ghanshyam and Vinod on 21.11.99 that Shankar had left to somewhere, thereafter there was no need for the accused to go to the house of the wife of the deceased and to make an enquiry as to where Shankar had gone and he would have been satisfied with the enquiry made by him from the son of the deceased that Shankar is not at home. But he insisted, went upstairs and enquired from the wife of the deceased about the whereabouts of Shankar. This shows that there was some intimacy between the two and this was a sufficient motive for accused Sudesh to murder Shankar and he did so.

70. The Hon'ble High Court of Delhi has laid down four principles, which are required to be proved in a case of circumstantial evidence, and, in my view, all these facts stand proved against this accused Sudesh. The presence of deceased and accused together on 20.11.99 and the subsequent disappearance of the deceased on the night intervening 20.11.99 and 21.11.99 from the company of the accused and that the four days after his recovery of dead about disappearance prove that it was the work of accused Sudesh who had murdered Shankar. There was no CRL.A. 624/2003 occasion for any other person to come in between Sudesh and Shankar to kill him.

71. Moreover, the weapon of offence i.e. the muffler, with which the deceased had been strangulated, had been concealed by accused Sudesh and he got it recovered from the place near the place of occurrence and this recovery has been witnessed by the son of the deceased and police witnesses. This muffler has been proved to be the ligature material, with which Shankar was strangulated, as the corresponding ligature marks possible from this muffler only. Thus, the recovery of weapon of offence i.e. the muffler, at the instance of the accused, points towards the guilt of the accused.

72. The circumstances, referred to above and brought on record by the police, form a complete chain and the only conclusion, which comes from the aforesaid facts, is that the crime has been committed by accused and none else.

73. From the above discussion, I come to the conclusion that prosecution has successfully proved that Shankar was with accused Sudesh on 20.11.99 at Mohan Garden and he had taken liquor with accused Sudesh and thereafter he was not seen alive and during his stay with accused Sudesh on the night intervening 20/21-11-99 he had been murdered by Sudesh by strangulating him with the help of muffler, which has been recovered at the instance of accused, and accused Sudesh had also pointed out the place where the murder was committed by him and also pointed out the place from where the dead body was recovered by the police. The dead body has been identified by the widow of the deceased to be the body of her husband. So, from the above discussion, it can be safely concluded that prosecution has successfully proved that accused Sudesh had committed the murder of Shankar on the night intervening 20th and 21st of November,1999 and CRL.A. 624/2003 believing the prosecution story, as true, I hold accused Sudesh guilty of the offence punishable u/s. 302 IPC and convict him thereunder.”

5. The learned Trial Court, after considering the arguments advanced by the parties, perusing the evidence on record and depositions of the witnesses concluded that the Prosecution had proved its case beyond all reasonable doubt and accordingly, the Appellant was convicted under Section 302 of the IPC vide Judgment dated 25.08.2003. Vide the order on sentence dated

26.08.2003, the Appellant was directed to undergo life imprisonment and pay fine of Rs.5000/- under Section 302 IPC and in the event of default in payment of fine, he was directed to further undergo rigorous imprisonment for one year. The Appellant has now sought to assail the impugned Judgement of conviction and Order on sentence passed by the learned Trial Court. The principal submission advanced by the learned Counsel for the Appellant is that the Prosecution’s case suffers from glaring infirmities. The learned Counsel for the Appellant has also submitted that the conviction of the Appellant is based on circumstantial evidence and the Prosecution has failed to establish an unbroken chain of circumstances. Therefore, the conviction of the Appellant is unsustainable. The learned Counsel for the Appellant, has attacked the case of the Prosecution on six broad grounds, which shall be delineated below.

6. Firstly, with respect to ascertaining the identity of the body of the deceased, learned Counsel for the Appellant has submitted that the identity of the body has not been firmly established. He has contended that there is a major difference in the height of the deceased as stated by PW-9/Beena and PW-8/Dr L.C Gupta. He submits that PW-9/Beena, who is the wife of the CRL.A. 624/2003 deceased has stated in her missing person report dated 25.11.1999 that her husband’s height was about 5 feet 4 inches. This factum has been recorded in the Rukka bearing DD No. 9B. However, PW-8/Dr. L.C Gupta in his autopsy report has mentioned that the height of body on which he performed post-mortem on 29.11.1999, was about 5 feet 11 inches. He argues that the Prosecution has been unable to explain this material discrepancy.

7. Secondly, learned Counsel for the Appellant has also argued that that the post-mortem examination was conducted on 29.11.1999 by PW8/ Dr. L.C Gupta, and the approximate time since death is 5 days prior to the post mortem i.e. 24.11.1999. However, as per the sequence of events, the deceased had allegedly gone missing between 20/21.11.1999.

8. Thirdly, it has been contended by the learned Counsel for the Appellant that the Prosecution has been unable to demonstrate or explain as to how the body of the deceased was transported from the alleged place of incident to the place of recovery. Both these places are at a distance of about

2.5 km from each other. The body of the deceased was recovered from the Ganda Nala near Sainik Enclave on 26.11.1999, whereas the alleged place of incident was Mohan Garden, Uttam Nagar. The learned Counsel for the Appellant has submitted that no witnesses have been examined to explain this crucial missing link in the chain of events.

9. Fourthly, the learned Counsel for the Appellant has submitted that the recovery of the alleged weapon of the offence, a muffler, is questionable. It is the case of the Prosecution that the deceased had been strangled by the Appellant and his brother Pawan, by using the deceased’s muffler. The learned Counsel for the Appellant has contended that the said muffler, which is purported to be the weapon used for commission of the offence, was CRL.A. 624/2003 recovered from an open space after a gap of more than two months. While the date of the incident is stated to be 20.11.1999-21.11.1999, the muffler was recovered on 01.02.2000.

10. Fifthly, the learned Counsel for the Appellant has vehemently contended that the alleged motive i.e., a love angle between the Appellant, PW-9/ Beena and the deceased, as advanced by the Prosecution and relied upon by the learned Trial Court, is bereft of any evidence whatsoever and is based on surmises and conjectures. He argues that in case of conviction based on circumstantial evidence, the absence of any motive ought to have been viewed in favour of the Appellant.

11. Sixthly, the learned Counsel for the Appellant has submitted that the clothes of the deceased were not identified by PW-9/Beena, wife of the deceased. PW-9/Beena has categorically stated in her deposition that her husband was wearing a maroon coloured pant and a vest of the brand “TT”, which was missing. The deceased was clothed in black pants and vest without the brand “TT”. At best the Prosecution may draw an inference that the deceased changed his clothes after 21.11.1999 however, the same has not been corroborated.

12. The learned Counsel for the Appellant has placed reliance on the Judgment of the Apex Court in Sharad Birdhichand Sarda v. State of Mahashtra, (1984) 4 SCC 116, to submit that the golden principles with respect to conviction of a person on the basis of circumstantial evidence has not been followed by the Trial Court. The Prosecution has been unable to prove its case beyond reasonable doubt and therefore, given that the case of the Prosecution is based purely on circumstantial evidence, the Appellant ought to have been given the benefit of doubt and accordingly acquitted. CRL.A. 624/2003

13. Per contra, the learned APP for the State has reiterated the arguments raised before the Ld. Trial Court and vehemently opposed the arguments advanced by the learned Counsel for the Appellant. He contends that the Appellant has been convicted after a thorough appreciation of evidence. He has taken this Court through the evidence recorded before the learned Trial Court. He states that the case of the Prosecution has been proven beyond all reasonable doubt and the chain of events is complete. Thus, the conviction should stand.

14. Learned APP for the State, while opposing the argument advanced by the learned Counsel for the Appellant regarding the identification of the deceased, has argued that PW-13/ Inspector Sumer Singh, PW-14/Ct. Brij Lal and PW-15/SI Suresh Kumar and PW-9/Beena, in their depositions have all pointed out that even though the body of the deceased was in an advanced state of decomposition, the face was recognizable. Learned APP has also placed emphasis on the deposition of PW-9/Beena who was the wife of the deceased. In her deposition she has categorically stated that she had lived with the deceased for many years and could easily recognize him.

15. Heard the learned Counsels for the parties and perused the material on record.

16. The Prosecution’s case rests entirely on circumstantial evidence. Its foundation the contradictory statements made by the Appellant corroborated with the testimony of PW-18/Vinod Singh, who had last seen the Appellant and the deceased together at the house at Mohan Garden. The Prosecution has also relied on the recovery of the deceased’s muffler, which was purportedly used to strangle him. The said muffler was recovered at the instance of the Appellant’s disclosure statement. According to the deposition CRL.A. 624/2003 of PW-9/ Beena, on 20.11.1999 the Appellant’s mother and his brother-in- law had come to their house in order to ask the deceased to work as a halwai at the house at Mohan Garden for the Appellant’s niece’s wedding. At about 7 AM the same morning, the deceased left for the house at Mohan Garden, accompanied by PW-18/ Vinod Singh and Ghanshyam.

17. PW-18/Vinod is the witness who last saw the Appellant with the deceased, and his deposition forms a vital link that has been relied upon by the Prosecution to prove the presence of the deceased in the house at Mohan Garden before the deceased went missing. In his deposition PW-18/Vinod Singh stated that he, along with Ghanshyam accompanied the deceased as helpers. In his deposition PW-18/Vinod Singh has stated that at about 8-9 PM on 20.11.1999, the Appellant and the deceased were sitting together, consuming alcohol, after which some dispute allegedly arose between the Appellant and the deceased. Between 10 and 11 PM, after completing their work, PW-18/Vinod Singh and Ghanshyam asked the deceased whether they could procced back home. Upon this query the deceased told PW-18/Vinod Singh and Ghanshyam that the house was like their own. Accordingly, the deceased, PW-18/Vinod Singh, Ghanshyam and the Appellant spent the night together in the house at Mohan Garden. PW-18/Vinod Singh and Ghanshyam slept on one cot whereas the deceased and the Appellant slept on another at around midnight. In his deposition, PW-18/Vinod Singh has deposed that upon waking up at around 6 AM he was unable to locate the deceased and made enquiries from the Appellant about his whereabouts. PW-18/Vinod Singh has also deposed that the Appellant told him that the deceased had left the house at about 3:30 or 3:40 AM. He has further stated CRL.A. 624/2003 that the Appellant asked PW-18/Vinod Singh to arrange for an alternative halwai as the main function was scheduled for that very day.

18. It is the case of the Prosecution that the Appellant, with an intent to conceal his crime, gave different versions to different PWs regarding the whereabouts of the deceased to delay the discovery of the deceased’s body. As per PW/9 Beena the Appellant visited her house on 21.11.1999 at around 1 PM and informed her that her husband had not reached the place where he was to prepare food, later admitting that he had consumed alcohol with the deceased at the house at Mohan Garden. She then sent her son, PW-10/ Vikas to Mohan Garden to enquire about the deceased.

19. PW-10/ Vikas’s deposition reveals that the Appellant came to their house on 21.11.1999 and asked him where his father was, whereafter the Appellant went and talked to PW-9/Beena. Following this, PW-10/Vikas was sent to Mohan Garden by his mother PW-9/Beena to ascertain the deceased’s whereabouts. PW-10/Vikas further stated that upon reaching the house at Mohan Garden, he met the Appellant, who informed him that the deceased had gone for work and would return after two to three days. When PW-10/Vikas went to Mohan Garden on 23.11.1999, he was again told by the Appellant that his father would return after some time.

20. PW-17/ HC Pradeep Kumar was one of the police officers who arrested the Appellant. He deposed that the Appellant made a disclosure statement while he was in custody and led the police to a vacant plot in front of the house at Mohan Garden, indicating it as the site where the deceased had been murdered. The Appellant then directed the police to a heap of bricks on the same plot, from which the deceased’s muffler was recovered. PW-10/ Vikas, who was present with the police team at that time, identified CRL.A. 624/2003 the muffler as belonging to his father, the deceased. It is the case of the Prosecution that this recovery has been made solely on the basis of the disclosure statement of the Appellant.

21. It is for this Court to assess whether the chain of circumstances relied upon by the Prosecution, namely, recovery of the deceased’s muffler at the instance of the Appellant i.e., disclosure statement, testimonies of the PWs and the deposition of PW-18/Vinod Singh, identifying the Appellant as the last person seen with the deceased, conclusively establishes the case of the Prosecution beyond reasonable doubt by excluding every other reasonable hypothesis consistent with the innocence of the Appellant to a point that the guilt of the Appellant is the only incontrovertible conclusion.

22. In cases like the present one, where the Prosecution’s case is based entirely on circumstantial evidence, the chain of circumstances from which the guilt of the accused is sought to be drawn must be cogently established. The facts established must be of such a nature that they unerringly point out at the guilt of the accused. The circumstances, when taken cumulatively, must form a chain so complete that there can be no escape from the conclusion that the crime was committed by the accused and the circumstances cannot be explained by any other reasonable hypothesis. The law regarding circumstantial evidence has been crystallised in the case of Sharad Birdhichand (supra), wherein the Apex Court has held as under:-