-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Shakti Singh & anr. Vs The State of Rajasthan D.B.CRIMINAL APPEAL NO.346/2003 against the judgment dt.21.01.2003 passed by Addl.Sessions Judge No.1, Udaipur, in Sessions Case No.23/2001 (55/2000). Date of Judgment: May 29th, 2006 P R E S E N T HON'BLE MR.JUSTICE N.N.MATHUR HON'BLE MR.JUSTICE MANAK MOHTA Mr.Doongar Singh, for appellants. Mr.Vishnu Kachhwaha, Public Prosecutor. REPORTABLE BY THE COURT : (PER HON'BLE MR.MATHUR J.) 1. The instant case unfolds a pathetic, chilling and sinister phenomenon whereby the life of an innocent husband has been eliminated from worldly scene by an unfaithful wife and her paramour. Second appellant Smt.Vandana, the wife and her alleged paramour first appellant Shakti Singh, was put to trial on the charge of murder of Piyush, the unfortunate innocent husband. -2- Learned Additional Sessions Judge by his judgment dated 21.01.2003, having found the prosecution case proved, convicted both the appellants of offence under Section 302/34 IPC and sentenced each of them to undergo imprisonment for life and to pay a fine of Rs.500/- & in default, to further undergo 15 days' simple imprisonment. Both of them have also been convicted of offence u/s.365 IPC and sentenced each of them to five years' simple imprisonment and to pay a fine of Rs.500/- & in default, to further undergo 15 days' S.I. They have further been convicted of offence u/s.201 IPC and sentenced each of them to three years' S.I. and to pay a fine of Rs.500/- & in default, to further undergo 15 days' simple imprisonment. Learned Judge also found the charge under Section 120B IPC proved and convicted them of the said offence but did not award any separate sentence. 2. Briefly stated the prosecution case is that on 1.3.2000, PW 19 Khem Raj submitted a written report Ex.P.40 before the Superintendent of Police, Udaipur, stating that his deceased son Piyush lived in Udaipur alongwith his wife for last two years. He used to run a beetle shop near `Sukhadiya Samadhi'. On his visit to Udaipur alongwith his wife, he found his son missing since 19t h February. His son's house and Cabin were found locked. He contacted his relatives, friends and in-laws of his son at Kankroli but -3- there was no satisfactory response. He submitted another report Ex.P.25 on 3.3.2000 at Police Station, Bhupalpura stating inter alia that he had given a missing report of his son & daughter-in-law on 1.3.2000. It revealed during search that his daughter-in-law i.e. wife of his deceased son Piyush viz; Vandana with the help of her paramour viz; Shakti Singh had kidnapped him. He got the said clue from an S.T.D. Booth at Ashok Nagar. As per the information collected, Vandana, from that STD Booth, used to make call at an STD Telephone No.02952-20819 at Rajnagar. The said call used to be received by P.W.1 Ganesh Kumawat who, in turn, used to arrange her talk with the first appellant Shakti Singh. It was submitted that interrogation from Ganesh might yield something substantial. On this information, the police registered a case for the offence u/s.365 IPC. During investigation, both the appellants i.e. Shakti Singh & Vandana were arrested on 7.3.2000. In pursuance of the specific informations given by both the appellants, a decomposed headless dead body was recovered from the graveyard at Udaipur. It was disclosed that Vandana had taken deceased Piyush, on the pretext of performing `pooja' alongwith appellant Shakti Singh on a scooter, to an isolated place, where he was killed by hitting stone on the head. Deceased Piyush was beheaded by sword and the body was buried on the bank of river `Aayad' at Udaipur. In pursuance of another information given by Shakti Singh, a -4- human skull was recovered on 9t h March, 2000 from river bed on Rajnagar Highway. The post mortem of the dead body (skeleton) and the skull was performed on 13t h March, 2000. In pursuance of the information given by appellant Shakti Singh, a blood stained sword was recovered. The police also recovered the photographs of appellants in romantic pose vide Ex.P.28, 29 & 30. The police also recovered the blood stained clothes of the appellants i.e. t- shirt, pants, woolen sweater, saree and blouse. In pursuance of the information given by appellant Shakti Singh, golden chain, ring and wrist watch of deceased were also recovered. The weapon of offence i.e. blood stained stone was also recovered in pursuance of the information given by appellant Shakti Singh. The police also collected incriminating evidence as to the conduct of appellant to the effect that while deceased Piyush was found missing since 19t h February, 2000, both the appellants had lodged themselves in Surya Guest House from 19t h to 22nd February. They had also stayed in another hotel on 4t h March at Nathdwara. In between, they travelled to various places upto Nepal. The skeleton and human skull were sent to the Central Laboratory, Hyderabad for DNA Test. DNA of sample blood of parents indicated biological relation of recovered skeleton and skull with parents of deceased Piyush i.e. P.W19 Khem Raj and his wife Bhagwati. After investigation, the police laid the chargesheet against both -5- the appellants for the offence u/ss.302, 302/34, 365/34, 201/34 and 411 IPC. 3. The appellants pleaded not guilty and claimed trial. The prosecution adduced oral & documentary evidence to prove the charges against them. The appellants in their statements u/s.313 CrPC denied the correctness of the prosecution evidence appearing against them and pleaded innocence. Learned trial Judge having found the prosecution case proved, convicted & sentenced the appellants in the manner stated above. 4. Assailing the conviction, it is contended by Mr.Doongar Singh, learned counsel for the appellants, that it was a blind murder and the appellants have been roped-in merely on suspicion. Learned counsel has dealt with each incriminating circumstance and pointed out infirmities, which according to him are fatal. It is vehemently argued that the prosecution has failed to show that corpus delicti recovered from the place alleged to have been pointed out by the appellants is that of missing person viz; Piyush. On the other hand, learned Public Prosecutor has supported the judgment of the trial Court. 5. There is no direct evidence in the sense of an eye witness account to connect the appellants with the crime. -6- The prosecution, however, relied-upon the following piece of circumstances in order to establish the charge of kidnapping and murder levelled against the appellants: (i) Recovery of headless decomposed corpus recovered from outside the graveyard at Udaipur and a human skull on 9.3.2000 from a river-bed on Rajnagar National Highway in pursuance of the information given by the appellants Shakti Singh and Vandana and the same was identified as that of deceased Piyush on the basis of post mortem report and the DNA Test; (ii) Recovery of blood stained sword in pursuance of the information given by appellant Shakti Singh; (iii) Recovery of blood stained clothes in pursuance of the information given by appellant Shakti Singh; (iv) Recovery of golden chain, golden ring and wrist watch of the deceased in pursuance of the information given by appellant Shakti Singh; (v) Recovery of blood stained stone; (vi) Recovery of Scooter; -7- (vii) Conduct of both the appellants after 19.2.2000, the date on which the deceased was last seen; & (viii) Both the appellants had a strong motive to murder Piyush. 6. It is well settled that where the inference of guilt of accused persons is to be drawn from circumstantial evidence, only those circumstances must in the first place be cogently established. Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused and none else. 7. Before we proceed to deal with each of the circumstances put forward by the prosecution, we may deal with the contention of the learned counsel with respect to identity or recovery of corpus delicti regarding which a great deal of argument is advanced. 8. It is well settled that the recovery of dead body is not very material but the death of person alleged to have been killed by the accused, must be proved. The Apex Court in Ram Chandra v. State of Uttar Pradesh reported in AIR 1957 SC 281, observed that - -8- “It is true that in law a conviction for an offence does not necessarily depend upon the corpus delicti being found. There may be reliable evidence, direct or circumstantial, of the commission of the murder though the corpus delicti are not traceable.” 9. “Corpus delicti” means “the body of crime” or the material substance upon which the criminal act was committed. In the case of homicide, “the corpus delicti” is the body of the victim who has been killed by the unlawful act of another human being. Under the old English Law, the recovery of the dead body was must but in India, as laid down by the Apex Court in number of judgments, recovery of dead body is not very material but the death of the person alleged to have been killed by the accused, must be proved. Reference be made to (1) Rama Nand v. State of Himachal Pradesh, reported in AIR 1981 SC 738; (2) Sevaka Perumal v. State of Tamil Nadu reported in AIR 1991 SC 1463; (3) Henry Westmuller Roberts v. State of Assam reported in AIR 1985 SC 823; and Suresh Chandra Bahri v. State of Bihar reported in AIR 1994 SC 2420. 10. In certain cases, even where the dead body of the deceased person is not recovered or seized but if there is positive evidence to connect the culprit, it cannot be said that the offence of murder is not established. Thus, the corpus delicti or the fact of homicidal death can be proved by telling and inculpating circumstances which definitely -9- lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned. 11. Before we proceed to deal with each piece of circumstances, it would be convenient to broadly survey the prosecution evidence. 12. P.W.1 Ganesh Singh is the owner of the S.T.D. Booth at Kankroli. He deposed that appellant Shakti Singh used to visit his shop to make telephonic calls. He used to talk with a girl at Udaipur. There used to be some telephonic calls by a girl from Udaipur, who disclosed her name as Vandana. He had arranged talks of Vandana with Shakti Singh. 13. P.W.17 Gopal is the relative of deceased Piyush. He stated that he had last seen the deceased on 19.2.2000. At that time, he was wearing a golden chain, a wrist watch and a black t-shirt. On 20.2.2000, when he visited the shop of deceased, it was found locked. His house in Ashok Nagar was also locked. He is also motbir of different police memos. Thus, he has given details of recoveries. 14. P.W.21 Purushottam is also a relative of deceased Piyush. He deposed that on 22.2.2000, one Bhagwatilal informed him on telephone that Piyush was missing. He also stated that he came to know from certain sources that his -10- wife Vandana was having illicit relations with Shakti Singh. He had gone to the police station alongwith Khem Raj, father of deceased. He is also motbir of the different police memos. He has given details of recoveries. 15. P.W.19 Khem Raj is the father of deceased Piyush. He resided in Village Jesawada Tehsil Garbada District Dahod in Gujarat State. He deposed that his son Piyush used to run a beetle shop in Ashok Nagar at Udaipur. He used to frequently talk to him on telephone to know about his welfare. Fifteen days prior to 29.2.2000, while talking on telephone, he had expressed his suspicion as to his wife Vandana's illicit relations with Shakti Singh. He has given the details as to the search made by him of his son Piyush. He has also given some details of the investigation. 16. P.W.7 Basant Singh is relative of appellant Shakti Singh. He deposed that appellant Shakti Singh took his Uncle's Scooter No.RJ30M966 on 19.2.2000 assuring that he would return the same within half an hour. But he returned the said Scooter on the next day. 17. P.W.3 Ratan Singh was the employee of a guest house viz; Surya Guest House at Raj Nagar. He stated that on 19.2.2000, the appellants Shakti Singh and Vandana checked-in the said Guest House and stayed upto -11- 22.2.2000. He also produced the relevant register Ex.P.2 showing the entry of appellants at item No.A to B & D to D. The entry is in the handwriting of appellant Shakti Singh. 18. P.W.9 Damodar Singh is the proprietor of a hotel at Nathdwara. He deposed that both the appellants were lodged in his hotel as guests on 4.3.2000. He produced the relevant register Ex.P.7, wherein there is entry of the appellants at item No.536. 19. P.W.2 Mohd. Sagir and P.W.5 Bhupendra Singh are the formal witnesses. They have not supported the prosecution as such. They were declared hostile. 20. P.W.4 Munshi Mohd. deposed that while he was proceeding towards the City and passed through `Aayad' river, he found that some people had assembled in the graveyard area. He found that in the presence of police, a young boy was digging the earth. He also stated that for burying a dead body in the graveyard, a pit is to be dug upto the depth of 4ft to 5ft. The dead body is covered by a white cotton cloth known as `Kafan'. His statement rules out possibility of the recovered body of a person buried in natural course, as it was dug out upto the depth of 1 ½ ft. and not 4-5 ft. There was no `Kafan'. -12- 21. P.W.6 Rajesh is another motbir of the recovery of Scooter. 22. P.W.14 Sunderlal was incharge of the Police Station, Rajsamand at the relevant time. He produced the record of the cases against appellant Shakti Singh, who was accused in FIR Case Nos.746/96, 112/98 & 494/98 for the offence u/ss.307, 336, 341, 323 IPC respectively. We have already referred-to some of the other motbir witnesses of different police memos. 23. As regards the link evidence, PW 13 Satya Narain stated that at the relevant time, he was incharge of the Malkhana at the Police Station, Bhupalpura, Udaipur. He stated that he received articles in FIR Case No.62/2000 in sealed condition. He gave those articles i.e. stone, blood stained sword, clothes and soil to PW 8 Madanlal for delivery in the FSL at Udaipur. He also gave the skull in a packed & sealed condition to PW 20 Nuruddin for depositing the same in the Malkhana at Jaipur. 24. P.W.8 Madanlal stated that he received seven packets in sealed condition from the Malkhana Incharge of the Police Station, Bhupalpura, for depositing the same in the FSL at Udaipur. After obtaining the forwarding letter and the sample seal from the Superintendent of Police, Udaipur vide -13- Ex.P.5, he deposited the said articles in the FSL, Udaipur on the same day. 25. P.W.12 Baktavar Singh stated that at the relevant time, he was posted as ASI at the police Outpost Aayad, Police Station Bhupalpura, Udaipur. He received the articles to be deposited with the FSL at Jaipur & for onward forwarding to the Central Laboratory at Hyderabad. He carried with him the forwarding letter alongwith specimen seal from the Superintendent of Police, Udaipur vide Ex.P.13. He deposited the said articles with the FSL at Jaipur in a sealed condition. After obtaining the requisite letter from the FSL, he carried the said articles to Hyderabad. The articles were kept in sealed condition. 26. P.W.20 Nuruddin was posted as Constable at the Police Station, Bhupalpura at the relevant time. He stated that he carried the four packets to the FSL, Jaipur in sealed condition vide Ex.P.45 and obtained the receipt vide Ex.P.46. The articles were deposited in the FSL at Jaipur. Th FSL Report Ex.P.64 shows that all the articles were received in the Laboratory in the sealed condition. Thus, by the link evidence, the prosecution has established that the articles remained intact right from the moment they were recovered until they reached to the concerned F.S.L. -14- 27. P.W.18 Dr.G.L.Dad, P.W.22 Dr.Harish Nagpal and P.W.12 Dr.Narendra Kumar are the witnesses of medical evidence. 28. We shall deal with each of the circumstances in seriatim: 29. RECOVERY OF DECOMPOSED CORPUS & HUMAN SKULL : Appellants Shakti Singh & Vandana were arrested on 7.3.2000 vide Ex.P.26 & 27 respectively in the mid night at about 12.30AM. Mst.Vandana made a disclosure statement on the same day at about 7.30AM vide Ex.P.55 that on 19.2.2000, she took her husband Piyush in the company of Shakti Singh near the `Aayad' river, Udaipur, on the pretext of performing `Pooja'. They killed him & buried his body on the bank of `Aayad' river. She expressed her desire to get the dead body and the stone recovered. Appellant Shakti Singh also made a disclosure statement at 7.50 AM vide Ex.D.4. that on 19.2.2000, he alongwith Vandana took deceased Piyush to `Aayad' river, Udaipur and killed him. The dead body was buried on the bank of `Aayad' river. He expressed his desire to get the dead body of Piyush recovered. Pursuant to the disclosure statements made, both the appellants took PW 23 Jaswant singh and others to graveyard on the bank of `Aayad river' and exhumed the buried corpus vide Ex.P.49 in the presence of -15- motbirs PW 21 Purushottam and Bhagwati Lal. Appellant Shakti Singh made another disclosure statement on 9.3.2000 vide Ex.D.5 stating that he wrapped the head of deceased Piyush in a t-shirt, put it in a gunny bag and buried the same beneath a bridge over `Khari river' ahead of Nathdwara. He expressed his desire to get the same recovered. Pursuant to the said information, he led the police party to `Khari river', got the skull recovered vide Ex.P.24 in the presence of motbirs PW 21 Purushottam and Bhagwati Lal. The recovered corpus and the skull were sent for post mortem, which was conducted by PW 18 Dr.G.L.Dad and PW 22 Dr.Harish Nagpal. 30. Before adverting to the controversy involved and the contentions raised, we consider it appropriate to extract the post mortem report, Ex.P.36, as follows: “External appearance Body is brought in advanced stage of decomposition into two parts recovered at different places in the stage of incomplete skeletonization. Part A – received on 7.3.2000 which involves the part of abdomen, pelvis, lower limbs in the stage of advanced decomposition & admixed with sand & dust particle. Part B – received on 13.3.2000 which involves the skull with ligaments attach at the base of skull with three fracture pieces of skull bones & pieces of mandible with ten loose teeth with bunch of hairs (scalp). -16- Examination of Part A - 1. Gross Examination : Ant. Abdominal wall present from lower ribcage to pelvis alongwith pubic hairs (skin of abdominal with pubic hairs are preserved for DNA Analysis) Abdominal organ absent. In this part, following members are present: (i) Pelvis with attach ligament & muscle at places in stage of advanced decomposition stage. (ii) Sacrum alongwith lumber vertebra with muscle & ligament attach in stage of advanced decomposition stage. (iii) Left lower four ribs are present alongwith muscles in advanced stage of decomposition. (iv) Organ – Bladder with prostate in stage of advanced decomposition. (v) Rt. femur, tibia alongwith muscle & ligaments in stage of advanced decomposition. (vi) Lt.femur, tibia, fibula, patalla & torsal bones – Talus, calcanum, cubical, navicular, cuniform three in No., second metatorsal, Greater helex alongwith ligaments & muscle attach in advanced stage of decomposition. 2. Examination Proper : (i) Pelvis:Ischiopubic semi everted of male type Grater sciatic notch narrow & deeper of male Ischial tubrosity inverted Acetabulum & pubic ratio of male type Subpubic angle is acute of male type Obturator foramen of oval in shaped. all these are indicative of male adult pelvis. (ii) Pelvis with lumber vertebra & Ant. Abdominal wall is in the advanced stage of decomposition with dust & sand present in pelvic cavity & in pelvic cavity Bladder present with prostate. (iii) in Both lower limbs muscles & ligaments are attached at places. Length of femur is 40cm. Length of tibia is 38cm. Both femur & tibia length is 79 cm. -17- Body Height = 70.37+1.22 (femur+tibia) + 3.24 (Approximate) = 70.37+1.22 x 79cm + 3.24cm. = 166.75 + 3.24cm in feet = 5 feet 6 inch + 1 inch No any bony injury seen in above mention bones. Examination of Part B - Skull present with three fracture pieces of skull bones of Rt. occipito partiotemporal region. (i) Pieces 1s t triangular in shape, 5cm x 4cm in its max. dimensions showing inward depress fracture which is antemortem in nature. (ii) Pieces of 2n d & 3r d are pieces of middle & postr. Cranial fossa which are fractured antemortemly. On Gross examination skull belongs to be male adult type with following point in favour: Orbit square in shaped & rounded margin male type. Supra orbital ridges prominent. Frontal & parietal eminence not prominent. Zygomatic arch prominent. Gabella prominent. All upper jaw tooth with 3r d molar teeth present with three loose tooth. Circumference 53cm, length of Nasio – occipital 31cm of adult type. Examination Proper : (i) On Rt. side of skull – there is bone gap (depress fracture) present on Rt. parieto occipito temporal region with missing of middle & postr. Cranial fossa bones with Rt.mastoid. (ii) There is intact fracture line extending from Rt. parietal extending anteriorly upto cranial sublime & medially upto saggital sublime, which is ante mortem in nature. (iii) On left side of skull showing fracture line on Lt. parietal region to left temporal region extending upto middle cranial fossa at base involving the external auditary meatus which is ante mortem in nature. (iv) There is fracture line extending from Lt. supramaxillary region to vertically downwards upto the -18- point below 2nd premolar & 1s t molar teeth. (v) There is two sharp linear cut present over the frontal bone on either side in the outer table which are antemortem in nature and about 4cm in length on both side. (vi) Few ligament (in decomposed state are attached at the base of skull. (vii) Pieces of Lt. mandible which is grossly consistent with skull, showing three molar & 2n d premolar teeth. There is sharp cut at its ant. Margin which is antemortem in nature, mandible of adult age showing - presence of 3r d molar. Mental foramen below mid of upper & lower border of Ramus. Concloyoid proces just above coronoid process. (viii) There are loose teeth 10 in No. found along with skull bones alongwith Bunch of hairs. Parts preserved for DNA ANALYSIS: Sealed Jar 1 : Contain Left Pelvic Bone, skin & pubic hair + muscle mass. Sealed Jar 2 : Contain skull bone (occipital), mandible (piece) + scalp hairs. Sealed Glass vial 3 : Contain blood of father 10 cc. Khemraj Paliwal S/o Chaturbhuj 56 yrs. R/o Jeswara. Sealed Glass vial 4 : Contain blood of mother 10 cc. Smt.Bhagwati Devi w/o Khemraj 45 yrs. R/o Jeswara. For Radiological age: Adv. X Ray of Skull of Part B X Ray of Pelvic Bone of Part A Opinions : 1. The present bone of skeleton belongs to human being. 2. The bones belongs to male sex. 3.The age of male is young adult (Approximate 30 yr). 4. Height of the person is about 5feet 6inches (one inch +). 5. Time since death is within about 3-4 weeks. -19- 6. Cause of death of Part B is Head injury with multiple fractures skull bones, which are antemortem in nature. Cause of death of Part A is