Crl.Appeal Nos.515/01 & 533/01 Page 1 of 45 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on : November 05, 2009 Judgment Delivered on: February 26, 2010 + CRL.APPEAL NO.515/2001 KIRAN MEHLAWAT ..... Appellant Through: Mr.R.M.Tufail, Advocate and Mr.Vishal Sehijpal, Advocate. versus STATE ..... Respondent Through: Ms.Richa Kapoor, A.P.P. + CRL.APPEAL NO.533/2001 SURINDER SINGH ..... Appellant Through: Mr.K.B.Andley, Senior Advocate with Mr.Sanjay Suri, Advocate and Mr.M.L.Yadav, Advocate. versus STATE ..... Respondent Through: Ms.Richa Kapoor, A.P.P. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON’BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes PRADEEP NANDRAJOG, J. 1. Appellants Kiran Mehlawat and Surinder Singh and co- accused Jasvinder Singh faced trial for the charge of having murdered Pratap Singh (herein after referred to as the Crl.Appeal Nos.515/01 & 533/01 Page 2 of 45 “Deceased”). Additionally, appellant Kiran faced trial for the charge of having given false information to the police. 2. Vide impugned judgment and order dated 18.05.2001, appellants have been held guilty of committing the offence punishable under Section 302/34 IPC, for which offence they have been sentenced to undergo imprisonment for life and pay fine in sum of Rs.10,000/-; in default to undergo rigorous imprisonment for a period of two months. Additionally, appellant Kiran has also been held guilty of committing the offence punishable under Section 203 IPC, for which offence she has been sentenced to undergo rigorous imprisonment for a period of one year and pay fine in sum of Rs.500/-; in default to undergo rigorous imprisonment for a period of ten days. Co- accused Jasvinder has been acquitted by the learned Trial Judge. 3. Case of the prosecution was that in the intervening night of 28/29.07.1996 Const.Varinder PW-16 and Const.Babu Singh PW-18, were patrolling in the area around Deepali Chowk, Rohini when they saw a motorcycle bearing registration No.DBX-4874 (of Yamaha make) lying abandoned on a service lane near Deepali Chowk. They opened the dickey of the motorcycle where they found the registration certificate of the motorcycle from which they gathered knowledge of the Crl.Appeal Nos.515/01 & 533/01 Page 3 of 45 address of house bearing Municipal No.134, Sainik Vihar, New Delhi. They went to the house in question where they met Kiran, who informed them that the motorcycle belonged to her husband and that the same has been stolen. The police officers told her to check whether anything else was stolen and followed her as she went up to the first floor and saw the dead body of a male having an electric cord around the neck. Kiran told them that the dead body was of her husband. 4. Const.Varinder PW-16, sent the aforesaid information through wireless to police post Shakti Vihar where DD No.23A Ex.PW-7/A was recorded; noting the aforesaid information. 5. On receipt of the aforesaid information, Inspector Naval Kishore PW-26, ASI Ram Swaroop PW-7 and HC Jagir Singh PW- 14 proceeded to the house in question. Inspector Naval Kishore PW-26, recorded the statement Ex.PW-6/A of accused Kiran and made an endorsement Ex.PW-26/A thereon, and at around 01.00 AM handed over the same to HC Jagir Singh PW- 14, for registration of an FIR. HC Jagir Singh took the endorsement Ex.PW-26/A to the police station and handed over the same to ASI Dharampal PW-14, who recorded the FIR No.428/96 Ex.PW-6/A. 6. Relevant would it be to note that the statement Ex.PW- 6/A of accused Kiran reads as under:- Crl.Appeal Nos.515/01 & 533/01 Page 4 of 45 “I reside at the aforesaid address with my husband, mother-in-law and children. My husband Shri Pratap Singh had retired as Major from the army. I am his second wife and that his first wife resides in England. My marriage was solemnized 10 years back. On 26.07.1996 at around 07.00 P.M. my husband who was carrying a sum of Rs.3,50,000/- with him had gone to village Mandora for the purposes of purchasing a piece of land. Yesterday at around 4.00 P.M. he came back to the house and after drinking a glass of water, he went to the first floor of the house. Some dirty clothes and cash was lying in the bag of my husband. I did not count the cash which was lying in the bag of my husband. After taking out the clothes from the bag and keeping them in a corner of the room I kept the bag containing cash on the bed in the same room. My husband went for taking a bath and I went to the other room. After taking bath, my husband switched on the air-conditioner, closed the room and started resting. I came downstairs and got busy in household work. At about 7.00 P.M. I closed the windows and doors of the house. At about 8.00-8.15 P.M. I took my children outside to buy them a cold drink and came back in the house after sometime. At about 9-9.15 P.M. I closed the main gate of my house as also other windows and doors of the house. Two gates which provide access to the first floor of the house were closed. At about 01.00 A.M. a police officer came to my house and informed me that our motorcycle has been found and that address of our house has been found in a motorcycle. The police officer further asked me to check if any other article has been stolen from the house upon which I went upstairs from the door on the front side because the inner gate was closed. I came upstairs and saw that there was dark inside the room. I switched on the light in the room and saw that my husband has been strangulated with a wire tied around his neck and that blood was oozing out from his ears. When I tried to move my husband I saw that he was lifeless and that he had died. The bag containing cash and some other things were missing from the room. Someone had committed robbery and killed my husband. An action be taken against him. Statement heard and admitted as correct.” (Emphasis Supplied) Crl.Appeal Nos.515/01 & 533/01 Page 5 of 45 7. Thereafter Inspector Naval Kishore PW-26, proceeded to inspect the house. He found a gold chain on the person of the deceased and some foreign currency notes and a gold bangle in an almirah in the room where the deceased was found dead and a torn slip of paper Ex.PW-7/D bearing the stamp of UCO Bank, Rohtak on the floor of the said room. Inspector Naval Kishore PW-26, seized the aforesaid gold chain and torn slip of paper Ex.PW-7/D vide memos Ex.PW-26/H and Ex.PW-7/C respectively and handed over the foreign currency notes and gold bangle found in the almirah to accused Kiran in the presence of Rajinder Sehrawat PW-1, the husband of the sister of the deceased. 8. On 29.07.1996 at about 01.15 P.M. the body of the deceased was sent to Lok Nayak Jai Prakash Hospital where Dr.L.T.Ramani PW-2, conducted the post-mortem of the deceased and prepared the report Ex.PW-2/A which records that an electric cord was found tied around the neck of the deceased; that one lacerated wound and some other injuries were found on the person of the deceased; that ligature marks were found on the neck of the deceased which were caused with the cord found tied around his neck and that the same were sufficient to cause death of the deceased in ordinary course of nature; that the cause of death of the deceased was Crl.Appeal Nos.515/01 & 533/01 Page 6 of 45 asphyxia resulting from strangulation of neck; that other injuries found on the person of the deceased were caused by a blunt weapon and the death of the deceased was caused 15 hours prior to the conduct of post-mortem. 9. After the post-mortem, the doctor handed over the clothes and blood sample of the deceased on a gauze to Const.Joginder PW-19, who handed over the same to Inspector Naval Kishore, who seized the same vide memo Ex.PW-19/A. 10. On 29.07.1996 SI Shanker Banerjee PW-5, recorded the statement Ex.PW-5/A of Dropadi, a maid servant employed at the house of the deceased, under Section 161 Cr.P.C. wherein she stated that accused Kiran was having illicit relations with accused Jasvinder; that accused Kiran frequently used to meet accused Surinder and Jasvinder at her residence and that accused Kiran met accused Surinder at her residence on the day of the murder of the deceased. 11. Thereafter the police recorded the statement Ex.PW-25/X of Vijay Pal, the brother of accused Kiran, under Section 161 Cr.P.C. wherein he stated that accused Kiran was having illicit relations with accused Jasvinder and that accused Jasvinder had told him that accused Surinder had murdered the deceased at the instance of accused Kiran. Crl.Appeal Nos.515/01 & 533/01 Page 7 of 45 12. Since the statements Ex.PW-5/A and Ex.PW-25/X of Dropadi and Vijay Pal respectively were suggestive of the involvement of accused Surinder and Jasvinder in the murder of the deceased, the police set out to apprehend them. 13. On 30.07.1996 a police team consisting of SI Shanker Banerjee PW-5, SI Rajbala PW-11 and SI Yashpal PW-24, arrested accused Surinder from village Thuru. On being interrogated by SI Shanker Banerjee PW-5, in the presence of SI Rajbala PW-11 and SI Yashpal PW-24, accused Surinder made a disclosure statement Ex.PW-5/A wherein he stated that he had murdered the deceased at the instance of accused Kiran and that he can get recovered the sum of Rs.70,000/- given to him by accused Kiran for murdering the deceased. Pursuant thereto, accused Surinder led the aforesaid police officers to his residence and got recovered seven packets containing hundred notes of Rs.100/- each i.e. a sum of Rs.70,000/- lying hidden under heap of cattle feed. It may be noted here that a slip issued by UCO Bank Rohtak was found affixed on one of the packets. SI Shanker Banerjee PW-5, seized the aforesaid seven packets recovered at the instance of accused Surinder vide memo Ex.PW-5/D. 14. Thereafter accused Surinder made another disclosure statement Ex.PW-5/F in the presence of Inspector Naval Crl.Appeal Nos.515/01 & 533/01 Page 8 of 45 Kishore PW-26 and SI Shanker Banerjee PW-5, wherein he stated that he can get recovered the shirt worn by him at the time of the murder of the deceased and the keys of the motorcycle of the deceased used by him for fleeing from the house of the deceased after committing his murder. Pursuant thereto, accused Surinder led the aforesaid police officers to a forest and got recovered a shirt and three keys lying hidden under bushes. Inspector Naval Kishore PW-26, seized the aforesaid shirt and keys recovered at the instance of accused Surinder vide memo Ex.PW-5/G. 15. On the same day i.e. 31.07.1996 a police team consisting of Inspector Naval Kishore PW-26 and ASI Veena PW-10, arrested accused Kiran. On being interrogated by Inspector Naval Kishore PW-26, in the presence of ASI Veena PW-10, accused Kiran made a disclosure statement Ex.PW-10/A wherein she stated that accused Surinder had murdered the deceased at her instance and that she can get recovered an iron rod used to murder the deceased. Pursuant thereto, accused Kiran led the aforesaid police officers to a room in her house and got recovered an iron rod lying hidden therein. Inspector Naval Kishore PW-26, seized the aforesaid iron rod recovered at the instance of accused Kiran vide memo Ex.PW- 10/B. Crl.Appeal Nos.515/01 & 533/01 Page 9 of 45 16. On 01.08.1996 Inspector Hoshiar Singh PW-22, arrested accused Jasvinder from the residence of the deceased. Accused Jasvinder was interrogated and his confessional statement was recorded. We note that no recovery was effected nor was a fact discovered by the police pursuant to the said statement made by accused Jasvinder. 17. On 09.08.1996 the iron rod recovered at the instance of accused Kiran was sent to Dr.L.T.Ramani PW-2, for his opinion regarding weapon of offence. Vide his opinion Ex.PW-2/B, the doctor opined that the lacerated wound and other injuries found on the person of the deceased could have been caused by the said iron rod. 18. The seized materials; namely the clothes and blood sample of the deceased, the iron rod recovered at the instance of accused Kiran and the shirt recovered at the instance of accused Surinder were sent to Forensic Science Laboratory for a serological test. Vide FSL reports Ex.PW-20/A and Ex.PW-20/B it was opined that the blood group of the deceased was A and that human blood of group A was detected on the shirt recovered at the instance of accused Surinder. 19. Needless to state, accused Kiran, Surinder and Jasvinder were sent for trial. Charges were framed against them for having committed the offence punishable under Section Crl.Appeal Nos.515/01 & 533/01 Page 10 of 45 302/34 IPC. Additionally, a charge was framed against accused Kiran for having committed the offence punishable under Section 201 IPC. 20. At the trial, the prosecution examined 26 witnesses. (It may be noted here that the prosecution did not examine Dropadi as she could not be traced) 21. Rajinder Sehrawat PW-1, the husband of the sister of the deceased, deposed that on receiving the information about the murder of the deceased he went to the house of the deceased. The police handed over the foreign currency notes and gold ring, found in an almirah lying in the room where the deceased was found dead, as also the gold chain found on the neck of the body of the deceased to accused Kiran in his presence. 22. Prahlad Singh PW-4, the nephew of the deceased, and ASI Ram Swaroop PW-7, deposed that on receiving the information about the murder of the deceased they went to the house of the deceased where amongst other persons the mother of the deceased was also present. 23. Const.Varinder PW-16, deposed that in the intervening night of 28/29.07.1996 he and Const.Babu Singh PW-18, were patrolling in the area around Deepali Chowk, Rohini when they saw that a motorcycle bearing No.DBX-4874 of Yamaha make Crl.Appeal Nos.515/01 & 533/01 Page 11 of 45 was lying abandoned on a service lane near Deepali Chowk. On not finding the key of the said motorcycle, he and Const.Babu Singh opened the dickey of the same wherein they found the registration certificate of the said motorcycle. The said registration certificate recorded that the owner of the motorcycle in question is a resident of house bearing Municipal No.134, Sainik Vihar, New Delhi. Pursuant thereto, he and Const.Babu Singh proceeded to the house in question where they met accused Kiran who informed them that the motorcycle found by them belonged to her husband i.e. the deceased and that the same has been stolen. There was no electricity in the house. When he and Const.Babu Singh enquired from accused Kiran whether any other article has been stolen from her house she signalled towards a room where they saw that the deceased was lying dead. It may be noted here that the testimony of the said witness was not controverted on behalf of accused Kiran. 24. Const.Babu Singh PW-18, deposed that in the intervening night of 28/29.07.1996 he and Const.Varinder, were patrolling in the area around Deepali Chowk, Rohini when they saw that a motorcycle bearing No.DBX-4874 of Yamaha make was lying abandoned on a service lane near Deepali Chowk. On not finding the key of the said motorcycle, he and Const.Varinder Crl.Appeal Nos.515/01 & 533/01 Page 12 of 45 opened the dickey of the same wherein they found the registration certificate of the said motorcycle. The said registration certificate recorded that the owner of the motorcycle in question is a resident of house bearing Municipal No.134, Sainik Vihar, New Delhi. Pursuant thereto, he and Const.Varinder proceeded to the house in question where they were met by accused Kiran who informed them that the motorcycle found by them belongs to her husband i.e. the deceased and that the same has been stolen. When he and Const.Varinder made enquiries about her husband, accused Kiran told them that her husband is sleeping upstairs. When he and Const.Varinder expressed a desire to meet her husband accused Kiran told them that there is no electricity in the house and thus she cannot go upstairs to call her husband upon which he and Const.Varinder along with accused Kiran went upstairs they saw that the deceased was lying dead in a room. It may be noted here that the testimony of the said witness was not controverted on behalf of accused Kiran. 25. Vijay Pal PW-25, turned hostile and denied having made statement Ex.PW-25/X to the police. 26. Inspector Naval Kishore PW-26, deposed that the investigation of the present case was entrusted to him. On receiving the information about the murder of the deceased he Crl.Appeal Nos.515/01 & 533/01 Page 13 of 45 went to the house of the deceased where he saw that the deceased was lying dead in a room and that a gold chain was present on the neck of the body of the deceased. He found some foreign currency notes and a gold bangle in an almirah lying in the room where the deceased was found dead. On being cross-examined about the whereabouts of the mother of the deceased around the time of the incident, the witness stated that (Quote): ‘It is correct that mother of deceased her children were also staying in same house. Deceased of mother refused to make statement child of deceased was too small to say anything. Mother in law of Kiran had orally stated that accused Bablu, Surinder and Vijay etc had been visiting their house. I had not recorded any statement in the case diary about this fact.’ 27. In her statement under Section 313 Cr.P.C. save and except admitting the factum of making of statement Ex.PW- 6/A accused Kiran denied everything. In their respective statements under Section 313 Cr.P.C. accused Surinder and Jasvinder pleaded innocence and denied everything. 28. The accused did not lead any evidence in defence. 29. As already noted herein above, the learned Trial Judge has convicted accused Kiran and Surinder. The reasons which led the learned Trial Judge to convict accused Kiran are that :- Crl.Appeal Nos.515/01 & 533/01 Page 14 of 45 (i) Conduct of accused Kiran was suspicious inasmuch as she did not inform the police about the murder of the deceased and that she had deliberately disconnected the electricity of her house; (ii) Accused Kiran made a false claim to the police that a robbery has been committed in her house and (iii) The injuries found on the person of the deceased were possible to have been caused by the iron rod recovered at the instance of accused Kiran. The reasons which led the learned Trial Judge to convict accused Surinder are that :- (i) The fact that a slip containing stamp of UCO Bank Rohtak was recovered from the house of the deceased and accused Kiran and that a slip issued by same bank was found affixed on one of the packets of notes recovered at the instance of accused Surinder suggests that the packets of notes recovered at the instance of accused Surinder were given to him by accused Kiran to murder the deceased; (ii) Blood of same group as that of the deceased was found on the shirt recovered at the instance of accused Surinder and (iii) The fact that one of the keys recovered at the instance of accused Surinder was that of the motorcycle belonging to the household of the deceased suggests that the said motorcycle was used by accused Surinder for running away from the house of the deceased after committing the murder of the deceased. However, learned Trial Judge acquitted accused Jasvinder on the ground Crl.Appeal Nos.515/01 & 533/01 Page 15 of 45 that the prosecution has not led even a single piece of evidence which could connect accused Jasvinder with the crime of the murder of the deceased. CASE AGAINST ACCUSED KIRAN 30. During the hearing of the above captioned appeals, two arguments were advanced by the learned counsel for accused Kiran. The first argument advanced was that the mother of the deceased was a material witness for the reason she could have thrown light on the events which happened around the time of the murder of the deceased as the testimony of Prahlad Singh PW-4, ASI Ram Swaroop PW-7 and Inspector Naval Kishore PW-26, establishes that the mother of the deceased used to reside in the house where the deceased was found murdered and that she was present in the said house around the time of the murder of the deceased. Counsel urged that an adverse inference needs to be drawn against the prosecution for non-examination of the mother of the deceased in terms of illustration (g) appended to Section 114 of Evidence Act that had the mother of the deceased been examined she would not have supported the case of the prosecution. The second argument advanced was that the prosecution has failed to establish the motive of accused Kiran for committing the murder of the deceased. Counsel urged Crl.Appeal Nos.515/01 & 533/01 Page 16 of 45 that accused Kiran deserves to be acquitted for failure to establish motive is fatal to the case of the prosecution when the prosecution seeks to establish the guilt of the accused on the basis of “circumstantial evidence”. 31. Who is a material witness? What is the effect of non- examination of material witness on the veracity of the case set up by the prosecution against an accused? 32. The answer to the aforesaid questions lies in the following observations made by Supreme Court in the decision reported as Takhaji Hiraji v Thakore Kubersing Chamansing AIR 2001 SC 2328:- “So is the case with the criticism leveled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the Court ought to scrutinise the worth of the evidence adduced. Crl.Appeal Nos.515/01 & 533/01 Page 17 of 45 The Court of facts must ask itself -- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of non-examination of other witnesses……” 33. Tested on the aforesaid anvil of law, can it be said that the mother of the deceased was a material witness? 34. The testimony of Inspector Naval Kishore PW-26, throws light on the said aspect of the matter. As already stated herein above, Inspector Naval Kishore PW-26, deposed that the mother of the deceased refused to make a statement under Section 161 Cr.P.C. Merely because of the fact that the mother