Ghanshyam Gupta alias Ghanshyam Vaish v. Present

Porwal, PW3 Kalpna @ Kapila Porwal, PW4 Rajeev Saxena, PW5 Smt. Annapurna Gupta, PW6 Deepak Gupta, PW7 Manoj Sharma, PW8 Head Constable, Ajeet Singh, PW9 Pradeep Pandey, PW10 Dilmohan Singh, PW11 Constable Bhupendra Singh, PW12 Dr. Sandeep Nigam and PW13 Mahendra Singh Negi. In defence, the appellant produced three witnesses, namely, DW1 Radhey Shyam Gupta, DW2 Tilak Ram and DW3 Sushila.

6. After prosecution evidence, the appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (“the Code”). According to him, he has been falsely implicated. He did not commit any wrong. 4

7. After hearing the parties, by the impugned judgment and order, the appellant has been convicted under Sections 302 IPC and sentenced as stated hereinbefore. Aggrieved, the appellant has preferred the instant appeal.

8. Heard learned counsel for the parties and perused the record.

9. Learned senior counsel for the appellant would submit that the entire case is based on the circumstantial evidence, the prosecution has not been able to prove its case beyond reasonable doubt. He submits that at the time of post mortem, inside the brassiere of the deceased, a piece of paper was recovered, which was purportedly written by the deceased. According to which, she was in relation with a boy of different religion and wanted to live with him throughout her life, but, her father, the appellant was not happy with it. Its proof is the document written in the Police Station Laxman Jhula. It records that she should be given justice. It is argued that this is a kind of dying declaration, which indicates that the deceased had committed suicide. Learned senior counsel submits that this document could not have been written by the appellant for the following reasons:- (i) It implicates the appellant. Therefore, the appellant could not have kept such document in the dead body of the deceased; and (ii) The document was kept inside the brassiere of the deceased. At such place, the father could not have kept the paper. It is argued that it indicates that the 5 deceased had committed suicide and rules out any possibility of homicidal death.

10. Learned Senior Counsel also raised the following points:- (i) According to the post mortem report, on cutting the ligature mark, white parchment like glistening white tissue was seen. It is argued that it is a sign of suicidal hanging, not strangulation. (ii) Mere positioning of ligature cannot determine as to whether the death was suicidal or homicidal. Even otherwise, it is argued that the ligature mark is 7 cm below the right ear, 6 cm below chin, 6 cm below left ear, therefore, it cannot be said to be horizontal, which it is argued indicates that it is suicidal hanging. (iii) The inquest report Ex. A9 is doubtful because according to PW7 Manoj Sharma, the dead body had already been removed from the first floor. Therefore, it is argued that it cannot be believed that the dead body was found below the bed. (iv) Prosecution has not proved that the appellant was the only occupant of the room where allegedly the dead body was found because according to PW1 Jagdish Prasad Saxena, though the room was allotted to the appellant, but on the same day at about 4:00 p.m. a person with three women and a girl of 8 to 10 years had visited the Dharamshala and it has not been established as to who stayed in the Dharamshala in the intervening night of 6 9/10.10.2013. Therefore, the appellant cannot be held guilty.

11. On the other hand, learned State Counsel submits that the prosecution has been able to prove its case beyond reasonable doubt; PW1 Jagdish Prasad Saxena is the Manager and Trustee of the Dharamshala, where the appellant had stayed on 09.10.2013; he had booked a room for a night, but he did not vacate it; On the next date, the dead body of the deceased was found below the bed in the room. It is argued that it is proved by the Dharamshala register and fingerprints, which were taken by PW10 Dilmohan Singh from the place of incident and the forensic report confirms that the fingerprints in the room were that of the appellant. It is also argued that the death is homicidal. PW12 Dr. Sandeep Nigam has stated that death was due to strangulation. Learned State counsel also submits that there is a motive to kill the deceased. She was apprehending her death. She had put a note in her person. Not only this, it is argued that on 29.09.2013 also Ex. A15 was written at Police Station Laxman Jhula, District Pauri Garhwal, wherein the deceased had categorically stated that she wanted to marry a person of different religion, due to which, her parents were not happy and on that date, she had unwillingly went with the appellant. It is argued that this was the motive for the appellant to kill his own daughter. Therefore, it is argued that the prosecution has been able to prove its case beyond reasonable doubt; the impugned judgment and order is in accordance with law. It does not warrant any interference.

12. Before the arguments are appreciated, it would be apt to examine as to what the witnesses have stated in their deposition. 7

13. PW 1 Jagdish Prasad Saxena is the informant, who is Manager and Trustee of the Dharamshala. According to him, on

09.10.2013 at about 1:30 in the afternoon, he had gone to the house of his son. When he returned, his wife told him that a Nepali person, who had visited the Dharamshala on 6th -7th October, had again come and had taken the keys of the room no.1. Thereafter, this witness reached in room no.1 and found the appellant in the room, who then told that 2-3 people will stay in the room and the room may be booked in his name. Therefore, in the entry register of the Dharamshala at Serial No. 1144, his entry was made and signature obtained. According to him, on the same day, some other persons visited the Dharamsala, then the appellant had told that they are his brother, sister in law and their children, who were staying in Shanti Kunj. According to the PW1 Jagdish Prasad Saxena, on 10.10.2013, till 2:00 p.m., when nothing was heard from the room of the appellant. He knocked at the door and when he did not get any response, he reached on the first floor, through a staircase and found that the back door was open, room was empty and a woman was lying on the floor below a bed. She did not respond. The appellant was not in the room. He gave a report Ex. A1 to the police. Police reached at the spot. He has proved the Dharamshala entry register of 09.10.2013 as Ex. A2. According to him, it bears his signatures and the signatures of the appellant also. This document, according to him, was taken into custody by the police. PW1 Jagdish Prasad Saxena is also the witness of recovery memo Exs. A26, A27 and A28 prepared by the Investigation Officer, by which the police had taken various articles from the place of incident. This witness has identified his signatures 8 on Exs. A26, A27 and A28. He has also identified various articles that were taken into custody by the police from the place of incident.

14. PW4 Rajeev Saxena is son of the PW1 Jagdish Prasad Saxena. He has corroborated the statement of the PW1 Jagdish Prasad Saxena. In fact, he had accompanied PW1 Jagdish Prasad Saxena, when the room was opened and they entered into the room from the balcony.

15. PW2 Dileep Kumar Porwal, PW3 Kalpana @ Kapila Porwal, PW5 Smt. Annpurna and PW6 Deepak Gupta are relatives of the deceased and the appellant. Though they have not supported the prosecution case and they were declared hostile, but, their evidence also requires little deliberation because it establishes the motive.

16. PW 2 Dileep Kumar Porwal is brother in law of the appellant. He speaks that the deceased was married to Manas on

13.02.2013, but deceased had an affair with some person with whom she had eloped and had divorced Manas. According to this witness, on

20.09.2013, the appellant along with his wife and the deceased had visited his home. Thereafter, on 12.10.2013, he received a telephone call from Haridwar. He went to the hospital at Haridwar and identified the dead body of the deceased. He was given supurdgi of the dead body. He has identified his signatures on those documents. This witness has also stated that the appellant was arrested in his presence. He has identified his signatures on the arrest memo Ex. A18. 9

17. PW3 Kalpana @ Kapila Porwal has also identified the dead body of the deceased. She is relative of the appellant and the deceased. According to her, they were given custody of the dead body. She has identified her signatures on the supurdginama.

18. PW5 Annpurna Gupta is an important witness. According to her, the appellant is her real brother. On 29.09.2013, she was told by her husband that the appellant, the daughter and the wife of the appellant are at Police Station Laxman Jhula. Her family members visited the police station and returned alongwith the appellant, his wife and daughter. This witness has stated that she has heard that the deceased wanted to marry a person of different religion. She did not want to stay with her first husband, with whom she had taken divorce. On 29.09.2013, the appellant alongwith the deceased stayed in the house and thereafter, they left.

19. PW6 Deepak Gupta is another relative of the deceased and the appellant. He is husband of PW5 Annapurna. He has also stated that he had identified the dead body and cremated it. This witness has also identified the photograph paper no. 10 B/50 to 10B/52 on record stating that they are the photographs of the deceased. He was also declared hostile by the prosecution.

20. PW7 Manoj Sharma and PW9 Pradeep Pandey are witnesses of inquest Ex. A9. They have stated about it.

21. PW8 Constable Ajeet Singh has received the FIR and recorded Chik FIR and made entry in the General Diary of the Police Station. He has stated about it. 10

22. PW10 Dilmohan Singh is the Sub Inspector, who on

10.10.2013 was at the police station, when FIR was lodged. He is the first person, who through balcony entered into the room where the appellant was staying and found the dead body of the deceased below a bed. He has stated about it. This witness states that he had taken fingerprints from the place of incident which are Ex. A5 to A8. This witness has also proved the inquest report Ex. A9, which was prepared by him. He also prepared various other documents. According to this witness, after visiting the spot, he learnt that the brother of the appellant was staying in Shanti Kunj on 9th and 10th October, 2013. Thereafter, he visited Shanti Kunj and received the slips from Shanti Kunj which are Ex. A15 and Ex. A16. Ex. A15, which this witness has proved is paper No. 49/21 in the original record. It is a slip of Shanti Kunj dated 03.10.2013 to 06.10.2013 in the name of the appellant. As stated, A15 has further been marked on another document which was proved by the PW11 Bhupendra Singh stating that on 29.09.2013, the appellant alongwith his daughter and wife had reached at Police Station Laxman Jhula, District Pauri Garhwal, where the deceased had given that text. It has already been discussed hereinbefore. Ex. A16 is another slip of Shanti Kunj, in which it is recorded that from

09.10.2013 to 10.10.2013, Tilak Ram Vaish had stayed in Shanti Kunj with three persons. According to PW10, upon inquiry having been made, he was told by PW5 Annpurna Gupta that on 29.09.2013, the appellant had telephoned her that they are at Police Station Laxman Jhula. They may be saved. Thereafter, the appellant, his wife and daughter were taken in his house. Subsequently, this witness PW10 Dilmohan Singh visited Police Station Laxman Jhula and took into custody the text which was written by the deceased on 29.09.2013, which was marked as Ex. A15. He has proved the recovery memo Ex. 11 A17. This witness has also taken into custody, the entry register of the Dharamshala, which is Ex. A19. He has also arrested the appellant and proved other documents.

23. PW11 Constable, Bhupendra Singh was In-charge, Police Station Laxman Jhula, District Pauri Garhwal on 29.09.2013. According to him, on that date, the deceased had given a text to him that she was married in the month of February, 2013 in Lucknow, but she had been divorced. She wanted to marry some other boy, but her parents were objecting to it. In that text, according to this witness, the deceased had stated that she is willing to go with her father, the appellant and other family members. This witness has proved the text Ex. A15 saying that the appellant and deceased had signed on it in his presence. It is Ex. A15, which has already been referred to hereinbefore. This witness has given this text to PW10 Dilmohan Singh, of which recovery memo Ex. A17 was recorded.

24. PW12 is Dr. Sandeep Nigam. According to him, on

11.10.2013, he had conducted post-mortem of the deceased. The body was decomposing. Trachea ring was fractured. There was a green chunni around the neck of the deceased having a knot on the back side of the neck. This witness has proved the post mortem report Ex. A23. According to the post mortem report, following was also noted by the doctor:- “(i) 33 x 2 cm ligature mark around the neck. (ii) On cutting the ligature mark white parchment like glistening white tissue seen. (iii) Ligature mark is 7 cm below right ear, 6 cm below chin. 12 (iv) Ligature mark is horizontal.”

25. According to PW12 Dr. Sandeep Nigam, before post mortem, they could get a piece of paper from inside the brassiere of the deceased. He has proved this document Ex. A24. This witness has also proved certain other documents.

26. PW13 Mahendra Singh Negi is the Inspector, who has prepared the site plan Ex. A25. He has proved Exs. A26, A27 and A28, the recovery memo by which various articles were taken into custody. He has also proved the charge sheet Ex. A29.

27. On the behalf of the appellant, in defence, three witnesses have been examined. According to DW1 Radhey Shyam, he has not given any information to the police about the appellant. DW2 Tilak Ram is the brother of the appellant. According to him, the police never interrogated him. He has not given any evidence to the police. DW3 Sushila is the wife of the appellant. She has denied that on

09.10.2013, she visited Dharamshala. According to her, the police had never taken any statement of her.

28. First and foremost it is to be examined as to whether the death of the deceased was homicidal or suicidal?

29. It is being argued on behalf of the appellant that at the time of post mortem, according to PW12 Dr. Sandeep Nigam, a piece of paper Ex. A24 was recovered from inside the brassiere of the deceased on which it was written by her that for her death, the appellant is responsible. It is argued that it indicates that the 13 deceased had committed suicide. On this line, it has been argued that below the ligature mark, white parchment like glistening white tissue is detected and ligature was 6 cm below from left ear and 7 cm below the right ear. Therefore, it was not horizontal. It is argued that mere ligature does not determine as to whether the death was homicidal or suicidal.

30. On the other hand, learned State counsel submits that PW12 Dr. Sandeep Nigam has proved the post mortem report Ex. A23 and has stated that the death of the deceased was caused by strangulation. She submits that it is not a suicidal death and recovery of the piece of paper from inside the brassiere of the deceased does not make it a case of suicide.

31. It is true that according to PW12 Dr. Sandeep Nigam, from inside the brassiere of the deceased a text Ex. A24 was recovered in which purportedly the deceased had recorded that her father is responsible for her death because she was in relationship with a boy of different religion and wanted to live with him, proof of which is a text written at the Police Station Laxman Jhula. In this text, the deceased seeks justice. Merely because this text has been recovered, it cannot be said that it is a suicidal death.

32. It is being argued that the appellant cannot keep such piece of paper holding himself responsible for the death of the deceased. This argument sounds well, but merely on this basis also, it cannot be concluded that the death of the deceased Upasna was suicidal. 14

33. A few facts need attention. PW10 Dilmohan Singh, is the first police officer who reached at the place of incident. He prepared inquest report Ex. A9, in which it is recorded that when they reached in the room they found the dead body below a double bed. On the bed, there were spectacles without a glass. The glass was below the legs of the deceased. The ceiling fan was running. This has been assailed by the learned senior counsel on the ground that the factum that the dead body below the bed has not been proved. The version in the inquest is not the substantive evidence. Moreover, according to him, PW7 Manoj Sharma in the first line of his cross examination has stated that the dead body was taken below the room. Therefore, he does not know about the room. Based on this argument, it is argued that it cannot be said that when police reached at the spot, when dead body was lying below the bed? This argument has, in fact, less merit for acceptance.

34. PW10 Dilmohan Singh has proved the inquest report. It records that the dead body was found below the double bed and a ceiling fan was running. He has also stated about the photographs of the dead body, which are on the trial court record, which reveals that the dead body was below the bed. But, as such, these photographs have not been exhibited and they are not proved. Therefore, they cannot be read into evidence. PW10 Dilmohan Singh has also stated in the first paragraph of the examination that the dead body was below the bed. He was not given even a suggestion in his cross examination that the dead body was not below the bed. The inquest report records that the ceiling fan was running. P10 Dilmohan Singh is the author of the inquest report, which he has proved as Ex. A9. He has not been put even a single question about the running ceiling fan. PW9 Pradeep 15 Pandey is another witness of inquest. Though, he also tells that he has signed the inquest report subsequently. He has also not been asked that the dead body was not below the bed.

35. PW1 Jagdish Prasad Saxena is the first man, who had reached at the place of incident. In page 2, opening line, he tells that when he reached in the room, he found a woman lying on the floor below the bed. This is what PW4 Rajeev Saxena has stated, who had accompanied PW1 Jagdish Prasad Saxena in the room.

36. Merely because PW7 Manoj Sharma has stated, at a stage, that the dead body was taken down from the room, it cannot be said that the dead body was not lying below the double bed. PW1 Jagdish Prasad Saxena, PW4 Rajeev Saxena, PW10 Dilmohan Singh have stated about it in their examination-in-chief that the dead body of the deceased was lying below the bed. They have not been cross examined on this aspect. This is so recorded in the inquest report, which has been proved by the witnesses.

37. Inquest report also records that the ceiling fan was running. If the ceiling fan was running, how could there be hanging by a woman all alone? If a person hangs himself, the dead body may not lie below the double bed. This is one aspect of the matter.

38. It is true that mere ligature may not determine whether the death is suicidal or homicidal. Various other factors need to be examined. 16

39. In the Textbook of Medical Jurisprudence and Toxicology by Modi 28th Edition at page 613 and 614 difference between hanging and strangulation in a tabular form has been given. According to it, following are signs of strangulation:- Strangulation • Ligature mark – Horizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish. • Fracture of the larynx trachea and hyoid bone.

40. In the instant case, the ligature was continuous below 6 cm from chin. The doctor says it is horizontal. Although, he writes that the mark was 7 cm below right ear and 6 cm below left ear. This also does not make the ligature mark oblique. These are signs of strangulation as per medical jurisprudence also. PW12 Dr. Sandeep Nigam has proved the post mortem report Ex. A23. According to which, the cause of death was asphyxia due to strangulation. He has not been put even a single question that the cause of death was not strangulation. He was not questioned about his opinion.

41. The dead body was found below the bed and the ceiling fan was found running. According to the doctor, the trachea had fractured and ligature mark was horizontal. These all conclusively proves that the death was not suicidal, it was homicidal. It is not a case of suicide.

42. The question is as to who killed the deceased? PW1 Jagdish Prasad Saxena has categorically stated that the appellant had taken the room on 09.10.2013. He was given the key. The appellant had received some visitors on that date and had told that those visitors are staying in Shanti Kunj. They were his brother and his 17 family members. PW10 Dilmohan Singh has taken record from Shanti Kunj, Haridwar, which is Ex. A16, which shows that on 09.10.2013 to

10.10.2013, Tilak Ram Vaish was given a room in Shanti Kunj, Haridwar and they were three persons. The appellant was the occupier of the room. The deceased was found in the room. It was homicidal death. The deceased did not check out the room. The front door of the room was locked from inside and the appellant did escape opening the door of the balcony.

43. Learned State counsel has also argued fingerprints also supports the prosecution case.

44. Learned State counsel submits that PW1 Dilmohan Singh had taken fingerprint impressions Ex. P5 to Ex. P8 from the crime scene, which were sent for forensic examination. She submits that in addition to it, Ex. A15, the text written by the appellant and the deceased on 29.09.2013 at Police Station Laxman Jhula, District Pauri Garhwal, which has been proved by PW11 Bhupendra Singh and Ex. A24, a piece of paper recovered from inside the brassiere of the deceased at the time of the post mortem, report, as proved by PW12 Dr. Sandeep Nigam.

45. It is argued that the fingerprints examination report is on the record of the trial court.

46. First and foremost, the question of fingerprints report is to be seen. According to PW10 Dilmohan Singh, on 10.10.2013, when he visited the Dharamshala, from the crime scene, he collected four fingerprints, which are Ex. A5 to Ex. A8. The fingerprints examination 18 report is Paper No. 15A/15 to 15A/17 dated 24.05.2014 and a handwriting expert report with regard to Ex. A15 and A24 is paper no. 15A/30 and 15A/31 dated 27.08.2014 on the record of the trial court. It may be noted that since in the instant case, the case was committed to the court of sessions for trial on 03.02.2014, which means that cognizance was taken and subsequent to it, when the case was committed for trial on 03.02.2014, till then, the finger print examination report of the Forensic Science Laboratory, Lucknow was not before the court concerned. The order sheets of the original record reveal that on 09.10.2014, an application was given by the prosecutor for filing Forensic Science Laboratory Report with regard to finger prints as well as Ex. A15 (the documents written at Police Station Laxman Jhula, District Pauri Garhwal on 29.09.2013 by the deceased and the appellant) and Ex. A24 (the text recovered from inside the brassiere of the deceased at the time of post mortem). It does not reveal that copy of it was ever given to the appellant.

47. It is important to note that at the time of argument, on behalf of the appellant, an application 46 A was given in the trial court on the ground that the appellant was not provided the Forensic Science Laboratory Report. Therefore, PW13 Mahendra Singh Negi, the Investigating Officer could not be cross-examined in detail on this aspect. Hence, request was made for further cross examination of PW13 Mahendra Singh Negi. This application was moved on

08.07.2016. The trial court by a detailed order dated 13.07.2016 rejected this application. But, the trial court did not record in its order, as to whether copy of the Forensic Science Laboratory report was ever given to the appellant or not. This is the back ground. 19

48. What is important to note is that in his examination under Section 313 of the Code, the appellant was asked that PW10 Dilmohan Singh had collected fingerprints from the crime scene, which are Ex. A5 to Ex. A8. In answer to this, the appellant replied that it is false proceeding. Finally, in page 7 of the examination of the appellant under Section 313 of the Code, in the last question, the appellant was asked that the fingerprints as well as Ex. A15 and Ex. A24 were sent to Forensic Science Laboratory. In its answer, the appellant replied that after wrong inquiry, false documents were prepared and false charge sheet has been submitted.

49. In his examination under Section 313 of the Code, the appellant was not even told that the Forensic Science Laboratory has given report with regard to the fingerprint and Ex. A15 and Ex. A34.

50. Since, the Forensic Science Laboratory Report with regard to the fingerprints that were obtained by the PW10 Dilmohan Singh from the crime scene as well as Ex. A15 and Ex. A24 were not placed to the appellant under Section 313 of the Code. Such Forensic Science Laboratory Report may not be read into evidence as held by the Hon’ble Supreme Court in the case of Nar Singh Vs. State of Haryana, (2015) 1 SCC 494. In the case of Nar Singh (supra), the Hon’ble Supreme Court in para 30 observed as follows:- “30. Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under:

30.1. Whenever a plea of non-compliance with Section 313 CrPC is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate 20 court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer.

30.2. In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits.

30.3. If the appellate court is of the opinion that non- compliance with the provisions of Section 313 CrPC has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused under Section 313 CrPC and the trial Judge may be directed to examine the accused afresh and defence witness, if any, and dispose of the matter afresh.

30.4. The appellate court may decline to remit the matter to the trial court for retrial on account of long time already spent in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view the prejudice caused to the accused.”

51. Without forensic Science Laboratory report to confirm that the fingerprints obtained by PW10 Dilmohan Singh, Ex. A5 to Ex. A8 from the place of incident were that of the appellant, it cannot be said that there were fingerprints of the appellant in the room, where the dead body of the deceased was found. Similarly, the text which was found on the piece of paper from inside the brassiere of the deceased in absence of any expert opinion, cannot be said to have been written by the deceased.

52. But, insofar as, Ex. A15 is concerned, it has been proved by PW11 Bhupendra Singh. It is a document written on 29.09.2013 at Police Station Laxman Jhula, District Pauri Garhwal. As stated, PW11 Bhupendra Singh has stated that the appellant and the deceased Upasna Gupta had signed on it in his presence. It is sufficient to prove that Ex. A15, the text, which was written on 29.09.2013 at Police Station Laxman Jhula, District Pauri Garhwal was signed by the 21 deceased and the appellant. This document establishes motive. In this text, the deceased has written that she had divorced from her first marriage. She wanted to marry with another boy of different religion, but her family members were not agreeable to it. PW2 Dileep Kumar Porwal, who is a relative of the deceased and the appellant both, has also stated about it. PW5 Smt. Annapurna Gupta has also stated that the deceased had married second time with a boy of different religion. She has also stated that on 29.09.2013, the deceased and the appellant were at the Police Station Laxman Jhula. Thereafter, her husband visited there and took them back in their house, where they stayed on that date. It supports the statement of PW11 Bhupendra Singh. The motive is proved. The statements of the witnesses are supported by the documents Ex. A15. The deceased wanted to marry a boy of different religion, due to which, the appellant was not happy. They have some dispute. In fact, they had reached to Police Station Laxman Jhula, District Pauri Garhwal on 29.09.2013, where then a kind of settlement Ex A-15 was written.

53. It is argued on behalf of the appellant that the prosecution has not been able to prove that there was only the appellant in the room, where the dead body was found. He referred to the statement of PW1 Jagdish Prasad Saxena to argue that, in fact, PW1 Jagdish Prasad Saxena has stated that there were other persons also, who visited the room in the Dharamshala on 09.10.2013.

54. PW1 Jagdish Prasad Saxena has stated that when the room was allotted to the appellant on 09.10.2013 in the Dharamshala in the evening at about 4:00 p.m., he had seen some visitors in the room of the appellant and when asked, the appellant replied that they 22 are his brother and other family members, who are staying in Shanti Kunj. This is what this witness has stated in his cross examination.

55. PW10 Dilmohan Singh had visited Shanti Kunj, Haridwar and obtained the slip Ex. A16 relating to Tilak Ram Vaish, who is brother of the appellant, which establishes and proves that, in fact, they had been allotted room in Shanti Kunj on that date. There were three persons entered in the slip.

56. Nothing has been elicited in the cross examination of the PW10 Dilmohan Singh, which may doubt the credibility of PW10 Dilmohan Singh with regard to Ex. A16.

57. It may be noted that in his defence DW2 Tilak Ram admits the fact that the appellant is his brother. The evidence of DW2 Tilak Ram does not, in any manner, doubts the testimony of PW1 Jagdish Prasad Saxena and PW10 Dilmohan Singh. Other family members of the appellant had visited him on 09.10.2013 at the Dharamshala, but he had given the statement that they were staying in Shanti Kunj and there is a record to prove it.

58. The appellant was allotted room in the Dharamshala on

09.10.2013. He had checked in. The extract of the entry register has been proved. Of course, there is some cutting on it, but PW1 Jagdish Prasad Saxena has stated that he had made entry in the Register. To that extent, this extract of entry register Ex. A2 may not be doubted. The appellant did not check out from the room allotted to him. The door was locked from inside. The appellant had escaped from the door of the balcony and the dead body of the deceased was found below the 23 double bed in the room. It only draws one inference that it is the appellant and the appellant, who had committed the offence.

59. Learned Senior counsel for the appellant had also argued that the police team had reached at the balcony with the help of staircase. In such circumstances, it is impossible for the appellant to escape from first floor without any help.

60. The death is homicidal. The deceased was killed by strangulation. The appellant was allotted a room, who was occupant of it. There are witnesses, who have established it. It is not impossible for a person to come out from the first floor of the room. This argument does not doubt the prosecution case.

61. In view of the foregoing discussion, this Court is of the view that the prosecution, in fact, has been able to prove its case beyond reasonable doubt against the appellant. The court below has rightly convicted and sentenced the appellant by the impugned judgment and order, which calls for no interference. Accordingly, the appeal deserves to be dismissed.

62. The appeal is dismissed. (Alok Mahra, J.) (Ravindra Maithani, J.) Jitendra

19.11.2025