Crl A. 836 of 2001 Page 1 of 68 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.A. No.836/2001 % Date of Decision: 25.03.2011 Shakuntala …. Appellants Through Ms. Ritu Gauba, Advocate Versus State …. Respondent Through Mr. Lovkesh Sawhney, APP CORAM: HON’BLE MR. JUSTICE ANIL KUMAR HON’BLE MR.JUSTICE S.L.BHAYANA 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 ANIL KUMAR, J. * 1. The appellant, Shakuntala, has challenged her conviction under Section 302 r/w Section 34 and Section 201 r/w Section-34 of IPC by judgment dated 11th September, 2001 and her sentence to rigorous imprisonment for life for the offence under Section 302 r/w Section 34 of IPC and a fine of Rs. 5,000/- and in default, to further undergo simple imprisonment for six months and her sentence to rigorous imprisonment for five years and a fine of Rs.1000/- and in default to suffer rigorous imprisonment for a period of one month for the offence under Section 201 r/w Section 34 of IPC. Crl A. 836 of 2001 Page 2 of 68 2. By the same judgment dated 11th September, 2001 in Sessions Case No. 125/2001 titled as State vs. Shakuntala, wife of Pritam Singh and Israr @ Bachan @ Bhura arising out of FIR No. 213/1996, PS Seelampur under Section 302/34 and 201/34 IPC, accused Israr was acquitted of offences under Section 302, r/w Section 34 of IPC and Section 201 r/w Section 34 of IPC on the ground that no efforts were made during the investigation of the supplementary challan to link accused Israr with the injuries which he had sustained when the offence was allegedly committed by him and there was only the disclosure statement of accused Shakuntala who had named accused Israr which was not sufficient to prove the guilt of the accused. Also the disclosure statement of Shakuntala had not been corroborated by any independent evidence in respect of accused Israr, nor did accused Israr himself make any disclosure statement. Furthermore his name did not figure in the alleged photocopy of the complaint Ex PY which was allegedly made by Joginder, the deceased and therefore, the prosecution had failed to link accused Israr with the commission of offence with which he was charged and thus the said accused was acquitted. 3. The prosecution case against the appellant Shakuntala was that the deceased Joginder Singh had married the appellant in a temple. According to the allegations of the prosecution, House No.- U-12, Gali No.-1, Arvind Mohalla, Ghonda, Delhi was purchased by Sh. Joginder Singh in the name of the appellant, but on account of the strained Crl A. 836 of 2001 Page 3 of 68 relations, he wanted to sell it off and was compelling her to dispose of the same and give 50% of the sale consideration to him to which the appellant was not agreeable. 4. It was alleged that in 1992, Joginder Singh, alleged husband of the appellant, was arrested in a TADA case by the police of Police Station Sarai Rohilla and he remained in jail for almost three years. After his release, in July, 1995, when he came from the jail, he doubted the fidelity of the appellant and had started quarrelling with her. The appellant had even got a case FIR No. 75/96 registered against Joginder Singh under Section 506 of IPC at PS Seelampur on 7th February, 1996, for the threats made by the deceased. It was also alleged that the appellant had developed illicit relations with Nasiruddin and when this fact came to the notice of Joginder Singh, Nasiruddin had left the place. It was further alleged that one room was rented by the appellant to co- accused Israr @ Bachan @ Bhoora @ Rashid and he had been living for three years in the house of the appellant. According to the prosecution, on 18th April, 1996 information was received through a wireless message by Inspector Ramkishan that a dead body was lying at second Pushta Approach, old Usman Pur Village, near the pond. On reaching the place, the dead body of a man aged 27 years with a slit throat and scratches on the body, bound in a gunny bag was found. The dead body was wearing sport shoes and a black pant. The throat was wrapped with an `Angochha‟ (Towel) and a maxi cloth around his neck Crl A. 836 of 2001 Page 4 of 68 and the gunny bag was wrapped with an electrical wire. The case under Section 302/201 of IPC was registered. On that date, the dead body was not unidentified, therefore, it was sent to the mortuary for preservation and for identification. 5. On 19th April, 1996, the next day, Sh. Rakesh Kumar and Rajesh Kumar, brothers of the deceased, identified the body. The prosecution had contended that after identification of the body on 19th April, 1996, Rakesh Kumar and Rajesh Kumar, brothers of the deceased, produced a photocopy of letter dated 25th November, 1995, Ex PY allegedly written by the deceased to the SHO stipulating that in case, the deceased does not return to his house for 4-5 days, then it should be presumed that Ms. Shakuntala, appellant, her mother Brahmi Devi, her sons Joshi and Bunty, Mahesh Kumar Sharma and Nasiruddin be held responsible. The original of the said letter was not recovered by the prosecution nor placed on record. The alleged handwriting of the deceased on the said letter had not been proved. On the basis of testimonies of Pw-8 and Pw-11 it could not be held that the photocopy of the alleged letter was in the handwriting of the deceased. 6. The prosecution also alleged that on 17th April, 1996, deceased had told his brother that he was asked by Shakuntala, appellant to come to her house, as a buyer was expected to come on that date. The deceased, therefore, along with his brother, allegedly went to the house of the appellant. Brother of the deceased, Rakesh Kumar, stayed for Crl A. 836 of 2001 Page 5 of 68 10-15 mins and then left from there, leaving behind his brother at the said place. Till 19th April, 1996, deceased did not returned to the house therefore the brother and father of the deceased made inquiries. Later on they identified his body in the mortuary along with the police officer SI M.A. Khan. 7. According to the prosecution, the appellant was arrested on 23rd April, 1996, at platform No. 38, Inter State Bus Terminus, Kashmiri Gate and was sent to judicial custody and was charged for murdering Joginder Singh along with Israr under Section 302/201 of IPC r/w Section 34 of IPC on 5th April, 1997. Accused Israr was arrested later on and a supplementary charge sheet was filed. On 5th April, 1997, charge was framed against the appellant that on or before 18th April, 1996 near a pond near Approach Road, 2nd Pushtah, Old Village, Usman Pur, she along with co-accused Israr @ Bachchan, Jaffar and Ashok (proclaimed offenders) committed the murder of Joginder Singh and also caused the evidence of the commission of offence to disappear with the intention of saving the offender from legal punishment and thus also committed the offence punishable under Section 201 r/w Section 34 of IPC. 8. After arrest of Israr, the charge against him was framed on 8th March, 2000 stipulating that he with appellant and Zaffar and Ashok, committed the murder of Joginder Singh @ Laloo and therefore committed offence under Section 302 of IPC r/w Section 34 and with Crl A. 836 of 2001 Page 6 of 68 the common intention caused the evidence of commission of offence to disappear with the intention to save the offenders from legal punishment, thereby committing an offence punishable under Section 201 r/w Section 34 of IPC. 9. The appellant and the co-accused Israr pleaded not guilty and claimed trial and during the trial, the prosecution produced 16 witnesses and on 9th August, 1999 examined the accused under Section 313 of the Crl. Procedure Code. 10. The Trial Court held that the deceased was last seen with the appellant, as his brother PW-11 had left him at the residence of the appellant. Reliance was also placed on the fact that House No. U-12, Gali No.-1, Arvind Mohalla, Ghonda was opened by the appellant with her key, which was in her possession at the time when she was arrested and articles were recovered at her instance from her house pursuant to the disclosure statement made by her, i.e., a portion of maxi and a wire. The Trial Court also relied on the CFSL report Ex. PW-14/F G & H holding that it corroborated the case of the prosecution and linked the articles recovered from the house of the accused Shakuntala with the articles recovered from the dead body, stipulating that the human blood of „B‟ Group was detected on these articles which was the blood of the deceased and also as the prosecution was able to prove the motive of the accused for perpetration of crime against the deceased, in order to grab the property and to get rid of him, therefore, the crime of the Crl A. 836 of 2001 Page 7 of 68 appellant to murder her husband in furtherance of common intention with other persons, who were not yet arrested was made out. It was also held that she also caused the disappearance of the evidence of commission of murder and threw the dead body with the intention of screening the offenders from legal punishment, therefore, she was also convicted for offences under Section 302/201 r/w Section 34 of IPC. 11. Ms. Ritu Gauba, learned counsel for the appellant has contended that the prosecution has failed to establish its case and the inferences are drawn on the basis of assumptions and surmises. The case of the prosecution is based on the fact that the deceased got married to the appellant however, neither the marriage has been proved nor has it been established by any witness as to when the marriage took place between the appellant and the deceased, who attended the marriage ceremonies who witnessed the marriage, who performed the rites for marriage and whether they ever co-habited as husband and wife. According to her, it has also not been proved that the disputed property was purchased by the deceased in his name and later on transferred in the name of the appellant. She has further pointed out the change in the prosecution version. Initially it was alleged that the property was purchased by the father of the deceased from his money in the name of his son, deceased Joginder, which later on transferred in the name of the appellant, while later on it was contended that the property was infact purchased by the deceased himself. She submitted that no Crl A. 836 of 2001 Page 8 of 68 documents have been produced or proved to show that the property was purchased initially in the name of Joginder Singh, deceased, by his father. Father of the deceased has not been examined nor has it been established that the money was paid by the father of the deceased for the purchase of said property raised from various sources nor such sources have been disclosed, which property was later on allegedly transferred by the deceased in the appellant‟s name. It is also apparent that no documents have been produced and proved to show as to when the property was transferred by the seller in the name of the deceased and when the property was transferred in the name of appellant. Learned counsel contended that the bald oral allegations by the brothers of the deceased does not establish anything nor on the basis of such testimonies the appellant can be inculpated. 12. Assumptions that the property was purchased by the father of Joginder in the name of his son, which illegally got transferred by the appellant in her name and since she allegedly developed illicit relations with other persons, so, the deceased wanted to sell the said property and share 50% of the sale consideration, which prompted the appellant to kill him is just a theory merely based on surmises and none of the allegations have been established and can be inferred even on the basis of preponderance of probabilities, whereas the prosecution had to prove it beyond reasonable doubt. Crl A. 836 of 2001 Page 9 of 68 13. According to learned counsel, the husband of the appellant is alive and in the circumstances, the allegations that she was married to deceased Joginder Singh, cannot be inferred especially in the absence of any evidence about the marriage between the deceased and the appellant. In any case, none of the prosecution witnesses have proved that the deceased and the appellant lived together as husband and wife. The entire prosecution version is based on assumptions. Even if it is presumed that the deceased and the appellant cohabited it would not mean that they got married and were husband and wife. There is no evidence at all that the property was ever in the name of deceased or was purchased from the consideration paid by the father of the deceased by raising it from various sources. In the circumstances the entire prosecution version has remained unproved and in the absence of all these essential and vital link it cannot be held that the prosecution has established the culpability of the appellant beyond reasonable doubt. 14. On behalf of the appellant, it is also contended that the alleged photocopy of the letter dated 25th November, 1995 has not been proved and cannot be relied on, as it is merely a photocopy and there is no evidence that it was in the hand writing of the deceased or that a copy of this letter was also delivered to the police authorities. 15. The learned counsel emphasized that the appellant has been shown as the wife of Pritam Singh in the challan submitted under Crl A. 836 of 2001 Page 10 of 68 Section 173 of the Crl. Procedure Code and even while framing the charges against the appellant. None of the witnesses including the brothers of the deceased have either deposed as to when and how the appellant got married to Joginder Singh or what is the basis of deposing that they got married, nor was any effort been made by the prosecution to establish that the appellant had been married to the deceased Joginder Singh. None of the witnesses could tell the location of the temple or the person/priest, who got them married or that they got married in their presence nor were any witness produced who had witnessed the alleged solemnization of the marriage. In the circumstances, the allegation of marriage between the appellant and the deceased is a mere speculation and is suspicious and the conviction of the appellant could not be based on mere suspicion. 16. The prosecution also failed to prove the alleged divorce between the appellant and her husband Pritam Singh and in the circumstances, there is no basis for alleging that the appellant got married to Joginder Singh. Even after alleged marriage between the deceased and the appellant, children were born to the appellant who were not fathered by the deceased as the brothers of the deceased in their testimonies had admitted that there were no children from the alleged marriage between the appellant and the deceased. 17. The prosecution had produced a photocopy of the ration card Ex PW 5/E and a warranty card of a godrej refrigerator, Ex PX which were Crl A. 836 of 2001 Page 11 of 68 produced and given to the police authorities by the brother of the deceased during investigation, contending that it allegedly proved that the deceased and appellant were co-habiting as husband and wife. Refuting the ration card, it is contended that it is only a photocopy which should not be considered, as the prosecution has failed to prove the photocopy from the record of the ration card office. Photocopy of the ration card could not be considered which is a secondary evidence and no grounds had been made out for leading and accepting the secondary evidence in accordance with the provision of Indian Evidence Act. The alleged ration card was allegedly issued on 17th November, 1992 and bears the address 528/5B, Gali No. 6, Vishwas Nagar, Delhi which is not the address of Rajesh Kumar, Rakesh Kumar and Puran Chand, brothers and father of the deceased nor it is the address of appellant nor it is the address at which the deceased and the appellant allegedly lived as tenant. The testimonies of Rakesh Kumar, PW-11 that the deceased and the appellant had shifted to a house in Bhimgali in Vishwas Nagar as a tenant and started living as husband and wife has also not been corroborated as no evidence has been produced. Neither the owner of the house where the appellant and the deceased were living as husband and wife as tenant, has been examined nor any other witness has been examined from the said property or the vicinity to prove that they were living as husband and wife or that the appellant lived in Bhimgali in Vishwas Nagar. The learned counsel has also pointed out the contradictions in the testimonies of the witnesses Crl A. 836 of 2001 Page 12 of 68 inasmuch as the alleged ration card was allegedly issued on 17th November, 1992 at the address bearing No. 528/5B, Gali No. 6, Vishwas Nagar, Delhi whereas PW-11 had stated that they were living in their own house, which was purchased in 1991, i.e., House No. U-12, Arvind Mohalla, Gali No. 1, Ghonda, Delhi, the consideration of which was allegedly paid by the father of the deceased. Another version of the said witness was that the appellant and the deceased lived as husband and wife in their house at 518/1 Karkari Road, Vishwas Nagar which version has also not been established by the prosecution. Bald statement of the deceased that the deceased got married to the appellant and they lived as husband and wife cannot be accepted without something more as the husband of the appellant is living and there had not been divorce between them rather appellant had children from her husband even after alleged marriage between appellant and the deceased. 18. Refuting the ration card, it is also contended that the photocopy does not bear the photograph of the head of the family nor does it bear the name, father‟s name, age and other particulars of the head of the family and in the circumstances, the photocopy is a fabricated document and could not be relied on. It was also contended that the ration card does not even have the printed/embossed ration card number. It was also contended that it has not been explained as to how the ration card was got prepared by deceased as he was under Crl A. 836 of 2001 Page 13 of 68 detention in TADA case in 1992. Why names of all the children of the appellant have not been included and only one of the child has been included has not been explained especially in view of the fact that name of one of her children from her husband is included in the photocopy of the ration card. 19. The learned counsel also refuted the warranty of the refrigerator which, according to her, has not been proved and in any case does not establish the marriage between the appellant and the deceased or that they were living as husband and wife or that they were living together. It is further contended that the alleged refrigerator was not recovered from the house of the appellant and that the alleged warranty card does not bear the signature of the purchaser. On the basis of alleged warranty card it also cannot be established that the deceased had any rights in the property nor the warranty card can be construed as a document of title. 20. The learned counsel Ms. Gauba has also contended that the allegation regarding arrest of the appellant from the bus terminus is concocted and false and highly improbable. According to her, no independent witnesses were recorded regarding her arrest, though the bus terminus must have been full of other passengers. She has also pointed out and doubted the prosecution version as to how the accused could have been arrested without any photograph from a crowded place, Crl A. 836 of 2001 Page 14 of 68 where many people were present and as to how and who had identified her. 21. Even according to the case of the prosecution at the time of her arrest, she did not have any bag or luggage or bus ticket or enough money to abscond from the city or any other documents in her possession, which makes the version of the prosecution highly unreliable that she was trying to flee to Bareli. It has also been pointed out that the alleged search of the appellant was carried out at Platform No. 38 of ISBT allegedly before the lady officer ASI Veena Sharma. However, ASI Veena Sharma, PW-13 stated that she was only a duty officer, who recorded the FIR on receipt of Rukka of PS Seelampur through Constable Sanjeev Kumar and after registration of the case returned the Rukka with the police file to the SHO. She has, therefore, not deposed about conducting the search of the appellant or recovery of any articles. According to the learned counsel, this completely falsifies the version of the prosecution. 22. The learned counsel has also pointed out about the keys, which were allegedly recovered at the time of her arrest from which the house was opened. However, ASI Veena Sharma is silent about this aspect rather she has not deposed that she had searched the accused and had recovered the keys from her. In any case recovery of keys of her own house from the appellant does not inculpate her in any manner. Crl A. 836 of 2001 Page 15 of 68 23. According to the learned counsel even on the basis of testimonies of the prosecution, the brother of the deceased had last seen him with appellant when he allegedly left him at the residence of the appellant on 17th April, 1996. The testimony of the brother of the deceased is unreliable and so even the version that he had dropped him at the residence of the appellant is also unreliable. According to counsel for the appellant the last seen evidence is not reliable as there were disputes between the deceased and his brother which had led to a fight between them, for which reason the father had stood surety. In the circumstances on the basis of testimony of Rakesh Kumar (PW11) it cannot be held that deceased was last seen with the appellant at about 12.00 PM on 17.4.1996. In any case it is contended that in absence of any other links in the chain of circumstantial evidence, it is not possible to convict the appellant solely on the basis of the last seen evidence and reliance was placed on Jaswant Singh Vs State of Punjab, (2005) 12 SCC 438. 24. The learned counsel for the appellant has relied on AIR 2010 SC 3292, Main Pal v.State of Haryana to contend that error in framing of the charge which could mislead the accused and results in failure of justice would vitiate the trial. 25. Reliance has also been placed on 2010 (1) JCC (Narcotics) 28, Ajmer Singh v. State of Haryana to contend that on the principle of parity as another accused Israr on the same evidence has been Crl A. 836 of 2001 Page 16 of 68 acquitted and as the case of the appellant is similar in that respect thus the benefit extended