Crl. Appeal No.724/2000 Page 1 of 27 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL. APPEAL 724/2000 Reserved on : 9th July, 2008 Date of Decision:19th August, 2008 GURBACHAN SINGH …… Appellant Through: Mr.Sumeet Verma, Adv. Amicus Curiae. Versus STATE …… Respondent. Through: Mr.Sunil Sharma, APP for the State. CORAM : HON’BLE MR. JUSTICE VIKRAMAJIT SEN HON’BLE MR. JUSTICE V.K.SHALI 1. Whether reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes J U D G M E N T V.K.SHALI, J: 1. This is an appeal filed by the appellant against the judgment dated 29th September, 2000 and the order of sentence dated 9th October, 2000 passed by Sh.H.S.Sharma, Additional Sessions Judge, Tis Hazari Courts, Delhi convicting and sentencing the appellant to life imprisonment for an offence under Section 302 of the IPC. The appellant was also sentenced to fine of Rs.10/- in default and he was directed to further undergo sentence of 5 days of Rigorous Imprisonment in default. Crl. Appeal No.724/2000 Page 2 of 27 2. Briefly stated, the prosecution case is that the appellant was married to one Smt. Jitender Kaur nearly 10-11 years back from the date of the alleged offence. Smt.Jitender Kaur was alleged to have been strangulated by the appellant on the night of 8th and 9th October, 1997 between 11.30 p.m. and 12.00 mid-night at the first floor of House No.E-1/220, First Floor, Madangir where the couple was residing. It was the case of the prosecution that the appellant from the wedlock had two sons aged six years and three and a half years or so. The elder son was being brought up by the father of the appellant at their residence at Palam. The younger one was staying with the appellant himself. The ostensible reason for strangulating the wife was that the appellant was alleged to be an alcoholic because of which there used to be frequent quarrels between the appellant and the deceased. The latter used to object to this habit of the appellant which he had picked up after 4-5 years of the marriage. It was also alleged by the prosecution that on 9th October, 1997 at about 8 or 9 a.m. the appellant dropped his younger son at the house of one Sh.Harbans Singh PW 6 whose son was a class fellow of the appellant’s son. It was said by the appellant to Harbans Singh PW-6 that he was taking his wife to the hospital and would come back in the evening and pick up his son. On the next date i.e. 10th October, 1997, the neighbours of the appellant found that bad odour emanating from the flat, whereupon one of the relations of the deceased PW-1 Tara Chand relation of the deceased was also informed who lodged a report vide DD No.11A at police station Ambedkar Nagar and the investigation revealed that Smt. Jitender Kaur was lying strangulated in the room. The room was locked from outside. The lock had to be Crl. Appeal No.724/2000 Page 3 of 27 broken with the help of locksmith PW-10 Sher Mohd. The body of the deceased had started decomposing. While the process of investigation was on, the appellant came to the place of occurrence himself at about 4.00-4.30 p.m. on 10th October, 1997. He was arrested and his search yielded one key of the lock which was found on the door of the room. The accused is also purported to have made the disclosure statement on account of which the piece of cloth with which the deceased was allegedly strangulated was also recovered from the room itself. The police after investigation filed a charge sheet under Section 302 IPC against the appellant whereupon on trial, he was found guilty, convicted and sentenced. 3. The prosecution in support of its case has examined 19 witnesses, namely, PW-1 Sh.Tara Chand, PW-2 Sh.Saroop Singh, father, PW-3 Sh.Jasbir Singh (brother of the deceased), PW-4 Sh.Naresh Kumar, PW-5 Sh.Manjit Singh, PW-6 Sh.Harbans Singh, PW-7 Constable Naresh Kumar, PW-8 Sh.Ashok Kumar, PW-9 Constable Sanjay Malik, PW-10 Sher Mohd., PW-11 Constable Prakash Chand, PW-12 Sh.Sonu Kaushik, PW-13 Constable Afijullah Malik, PW-14 Head Constable Karan Singh, PW-15 SI Bir Singh, PW-16 SI Dhan Singh, PW-17 Dr. S.K.Gupta, (Department of Forensic Medicines and Toxicology), PW-18 SI Asha, PW-19 Inspector Ombir Singh. 4. The accused was examined under Section 313 of the Cr.P.C. The accused denied his involvement in the commission of the offence although the factum of death of the deceased Smt.Jitender Kaur is not in dispute. The appellant took the plea that on 9th October, 1997 in the morning he had gone to PW-6 Sh.Harbans Crl. Appeal No.724/2000 Page 4 of 27 Singh’s house and dropped his son there as he had to go to Haldwani and return on the next day, while as his wife, since deceased Jitender Kaur, was to collect the child from the residence of Sh.Harbans Singh. The appellant in his statement under Section 313 Cr.P.C. has admitted the factum of recovery of key from his possession at the time of his arrest. It is also admitted by him in his statement that one of the legs of the appellant below the knee of the deceased was under a plaster. The appellant did not adduce any evidence in his defence. 5. We have heard the learned counsel for the appellant as well as the State. We have gone through the records of the case. 6. At the outset, it is stated that both the learned counsel for the prosecution and defence have admitted that the entire case is based on circumstantial evidence. The learned counsel for the appellant assailed the finding in the judgment of the learned Additional Sessions Judge, on the ground that the entire chain of circumstances has not been established beyond reasonable doubt so as to leave any room for a hypothesis which is not compatible with the innocence of the accused. It was in essence urged by him that although there may be a grave suspicion that the appellant may have committed the crime but the suspicion could not take the place of proof which was the sole responsibility of the respondents to establish beyond reasonable doubt. The learned counsel for the appellant relied upon State of Haryana Vs. Jagbir Singh & Anr. 2003 (8) Scale 221 and Narendra Singh & Anr. Vs. State of M.P. 2004(4) Scale 543. The latter authority was specifically relied upon to make a point that although a plea of alibi was taken by the Crl. Appeal No.724/2000 Page 5 of 27 appellant but it was not proved by him yet it was primarily for the prosecution to prove the guilt of the appellant beyond reasonable doubt. The second submission made by the learned counsel for the appellant is to the effect that no motive has been established by the prosecution for the appellant to kill his wife. It was contended by the appellant that although motive may not be necessarily relevant and established in a case of direct evidence but motive becomes very relevant in a case which is essentially based on the circumstantial evidence and the present case being one based on circumstantial evidence the motive must be established. The third submission made by the learned counsel for the appellant was that he had disputed the recovery of the key from the appellant. It was contended that the recovery of the key from the appellant was not established inasmuch as the only independent witness to the personal search memo of the appellant was PW-1 Tara Chand who did not support the prosecution case regarding the recovery of the key from the appellant. It was urged that this stood further reinforced by the fact that the recovery of the key is not shown in the personal search memo Ex.PW1/4 of the accused. It was contended that no weight could be attached to the admission made by the appellant in his statement under Section 313 Cr.P.C. regarding the recovery of the key from his pocket. It was stated that the prosecution has to still prove the recovery of the key independently. Reliance was placed on Shahbuddin Vs. The State (NCT of Delhi) 2002 2(1) JCC 368. Crl. Appeal No.724/2000 Page 6 of 27 7. The appellant also disputed the factum of having made the disclosure statement to the Investigating Officer and the consequent alleged recovery of the piece of cloth with which the deceased was alleged to have been strangulated. It was also urged by the learned counsel that assuming though not admitting that the said cloth which was purported to have been recovered by the prosecution in pursuance to the disclosure statement was inadmissible in evidence on account of the fact that a fact which is already known to the prosecution cannot be said to have been discovered as it constitutes a fact which is already known to the prosecution is in fact rediscovered. Elaborating this argument further it was contended that a Crime Team had visited the place of incident and seen the alleged piece of cloth lying in the room along with number of ruffles where the incident is purported to have been taken place yet they had not mentioned about the said piece of cloth in its report. Therefore, the recovery of the said piece of cloth subsequent thereto in pursuance to the alleged disclosure statement of the appellant is inadmissible in evidence because this fact of cloth being available in the room itself was already known to the prosecution. 8. Per contra, the learned counsel for the prosecution contended before us that the guilt of the appellant is proved beyond reasonable doubt as the entire chain of circumstantial evidence is completely established without leaving any room for any fact which may be incompatible with his guilt. Thus it was urged that he has been rightly convicted and sentenced by the learned Additional Sessions Judge vide the impugned order. It was contended by the learned counsel for the State that so far the Crl. Appeal No.724/2000 Page 7 of 27 recovery of the key from the appellant is concerned, no doubt the factum of the same having been recovered from the possession of the appellant is not reflected in the personal search memo but invariably when a person is arrested, an article which is a case property and an article which is not a case property are recovered, from the possession of the accused, they will be reflected in two sets of separate memos. An article which is a case property will be shown only in seizure memo and not in a personal search memo, as has been the case in the present one. It was stated that as the key of the lock which was found on the door of the room from where the body of the deceased was recovered was a case property it was seized vide memo Ex.PW7/1. This was the reason why the recovery of the key does not find the mention in the personal search memo. So far as the motive of the appellant to kill his wife is concerned, it was contended that the motive may not be necessary to be established or proved in each and every case including that of one which is based on circumstantial evidence. In the instant case, it was stated that ostensible motive for the appellant to kill his wife was that he was an alcoholic and the latter used to object to the consumption of the alcohol and this had caused a serious matrimonial discord and frequent quarrels between the appellant and the deceased. It was stated by PW- 1 Sh.Tara Chand, that almost a year back he had called the deceased to his residence as a fallout of the same. It was only on the assurance of the appellant and his father that the deceased was permitted to go to her matrimonial home by PW-1. The existence of strained relations Crl. Appeal No.724/2000 Page 8 of 27 between the appellant and the deceased was also corroborated by PW-2 and PW-3 who are the father and the brother of the deceased. With regard to the disclosure statement of the appellant and the consequent recovery of the piece of cloth from the room with which the deceased was strangulated, it was urged that the dead body of the deceased was lying in the room where ruffles were scattered all over. Accordingly, even though the Crime Team may have inspected the room yet the piece of cloth with which the appellant is alleged to have strangulated his wife, could not have been found unless and until the same was specifically pointed out by the appellant or any other person. This is precisely what had happened that as a consequence of the said disclosure statement Ex.PW1/3, the appellant led the police party to the scene of crime and thereafter, got the said piece of cloth recovered from the room in question among the bunch of ruffles lying there. Learned counsel for the prosecution also placed reliance on the judgment titled as A.N.Venkatesh & Anr. Vs. State of Karnataka 2005 SCC (Cri) 1938 in order to contend that the timing of the deceased having expired four days prior to the time of post mortem which was conducted on 12th October, 1997 could not be relied upon as the basis of the exact time of the death of the deceased on account of the fact that the decomposition of the body of the deceased had already set in. Therefore, the timing given by PW-17 Dr. S.K.Gupta with regard to the timing of the death could not be relied upon as the exact time when the death of the deceased is alleged to have taken place. The learned counsel for the State also contended that there was no evidence at the scene Crl. Appeal No.724/2000 Page 9 of 27 of crime to show that there was any forcible intrusion into the room in question where the deceased was lying and the room was locked from outside and the appellant was found to be in possession of one of the keys of the said room at the time of his arrest would make any reasonable person to draw an inference to the effect that it was the appellant alone who could have killed his wife. Therefore, there was no infirmity in the judgment and the order of sentence. 9. We have considered the submissions of the respective sides and perused the records. There is no dispute about the fact that the entire case of the prosecution with regard to the death of the deceased is based on circumstantial evidence. The tests which have been laid down by the Supreme Court with regard to the circumstantial evidence must be fully satisfied before the conviction and sentence of the appellant is upheld. Hereinafter, we examine various facts and circumstances so as to see as to whether the guilt of the appellant is proved beyond reasonable doubt so as to uphold his conviction and sentence. 10. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down by the Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: “(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human Crl. Appeal No.724/2000 Page 10 of 27 probability the crime was committed by the accused and none else; and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” Keeping in view the aforesaid broad parameters which have been laid down by the Supreme Court and reiterated by the subsequent pronouncements including in Jagbir Singh’s case (supra), we proceed to see as to whether the complete chain of events in the instant case is satisfied so as to uphold the conviction, sentence of the appellant or whether the submissions which have been made by the learned counsel for the appellant create a doubt in the mind of the Court so as to give the benefit of the said doubt to the appellant. 11. Strained relations between the appellant and the deceased. The case of the prosecution is that the appellant was having strained relations with his wife namely Smt. Jitender Kaur. The reason for having strained relations was given by the prosecution that the appellant was in the habit of taking alcohol to which his wife used to raise objections. This had become a source of constant friction between the two. Further on account of consumption of alcohol, the appellant also used to subject the deceased to physical violence. In order to establish this fact, the testimony of PW-1 Tara Chand who was related to the deceased is important. He has categorically stated that the appellant used to drink alcohol and used to indulge in physical violence against his wife Smt. Jitender Kaur. He has also stated in his statement that Crl. Appeal No.724/2000 Page 11 of 27 on one such occasion, he had brought the deceased to his residence on account of this reason only. Subsequent thereto, the father of the appellant came to the house of PW-1 Tara Chand and took the deceased back. The witness was subjected to cross examine by the appellant where he failed to elicit anything worthwhile which would discredit the testimony of this witness with regard to the factum of the appellant having strained relations with his wife on account of his bad habit of consumption of alcohol. No doubt this witness was declared hostile by the prosecution as he did not support the prosecution case regarding the signing of various documents to begin with. But in cross examination he admitted that he had signed documents like seizure memo, personal search memo, disclosure statement though he again stated that only some of the documents were read over to him. The witness is admittedly of advanced age and therefore cannot be expected to remember the minute details. Some benefit has to be given to the witness on account of his advancing age. The witness has given his age as 72 and at such age a person could be hardly expected to remember the minute details. Further there is also a time lapse between recording his statement and testifying before the Court which also contribute to such a loss of memory. However, the testimony of this witness on core issue regarding strained relations of the appellant and his deceased wife and latter having been brought by PW-1 to his own residence once and thereafter being taken by the father of the appellant remains unshaken. The testimony of PW-1 Tara Chand is corroborated by PW-2 and PW-3 who are the father and the brother of the deceased. PW-2 Sh.Saroop Singh has stated that the appellant used to drink Crl. Appeal No.724/2000 Page 12 of 27 alcohol and then beat his daughter. He had taken the deceased to his native village also on 3-4 occasions and on some of these occasions, the appellant brought the deceased back to Delhi with the help of his relatives. In the cross examination, he volunteered that on one particular occasion, the appellant beat his wife twice or thrice in his presence only after drinking alcohol. PW-3 Sh.Jasbir Singh brother of the deceased also made the statement on the same lines and he refers to one specific incident when his mother was also present who had taken the deceased to her maternal Uncle’s house at Delhi. This seems to be having a reference to the deceased being taken to house of PW-1 Tara Chand which was quite nearby to the residence of the appellant. He has also admitted that a settlement thereafter arrived and the appellant had taken back his wife. This witness was also cross examined by the appellant. However, the testimony of these two witnesses have also remained unassailed on this score. As against this, the appellant has denied that he used to consume alcohol or that he would subject his wife Smt.Jitender Kaur since deceased to any physical assault after consuming alcohol. But the version of the appellant hardly inspires confidence in the light of the testimony of three witnesses namely PW-1, PW-2 and PW-3. Therefore, the factum of the appellant having a strained matrimonial relations with his wife deceased Smt. Jitender Kaur is established beyond any pale of doubt. This is also established that after consuming alcohol he would lose his senses and would indulge in physical violence qua his wife. The deceased was objecting to this habit of the appellant which was the source of constant friction between the two. Obviously, this gave rise to an Crl. Appeal No.724/2000 Page 13 of 27 occasion as well as the motive to the appellant to do away with his wife. It is well reasonable and prudent to draw an inference that the appellant had a definite motive to silence his wife permanently as this was the constant source of friction. This is also an important fact which forms one of the important sequences in the entire chain of events to draw an inference that it was the appellant and no one else who had the motive to kill his wife. 12. Death of the Deceased It is not in dispute that the appellant was residing only in one room at the address House No.E-1/220, First Floor, Madangir. It is also not disputed by the appellant that on 9th October, 1997 in the morning, he had gone to the residence of PW-6 Sh.Harbans Singh and told him that he is leaving his son with him so that he could play with the son of Sh.Harbans Singh as both of them were studying in the same class. The appellant is alleged to have stated to Sh.Harbans Singh PW-6 that he is taking his wife to the hospital and that he would collect the child in the evening. PW-6 Harbans Singh has stated that the appellant or his wife had not come to collect his child in the evening. On the same day he gave a ring to the father of the appellant who was living in Palam Village and handed over the child to him. It is the case of the appellant that when he came on the next date, he found that his wife has been killed. The appellant also expressed his ignorance about the factum of the room being locked as according to the case of the appellant when he left his house, his wife was there in the room. Let us test the statement of the appellant in the light of the circumstances which have been established. The circumstances which have been established are that the room was lying locked Crl. Appeal No.724/2000 Page 14 of 27 had to be opened with the help of lock-smith PW-10 on 10th October, 1997. The dead body of the deceased had decomposed and bad odour was emanating which lead to the calling of her relation PW 1 Tara Chand by the neighbours and the consequent lodging of FIR. There was no evidence either of the room having been ransacked or there being forced intrusion into the room inasmuch as there was only one window having a grill which was found to be intact and the room was lying locked from outside. If this factual position of the scene of the crime is examined in the light of the statement of