Joginder Pal Singh vs State
1986 Latest Caselaw 10 Del

JUDGMENT

Aggarwal, J.

(1) Joginder Pal Singh, the appellant herein, was tried on the charge of killing his wife Gulshan Kumari. The learned Additional Sessions Judge who tried the case found title accused guilty of the offence under section 302 of the Indian Penal Code and sentenced him 'to death. There is a reference" for the confirmation of the death sentence. The appellant has also filed an appeal against his conviction and sentence. This judgment shall dispose of both the reference and the appeal.

(2) The case for the prosecution is this, Satwant Kaur (P.W. 27) Along with her two daughters Daljeet Kaur (P.W. 26) and the deceased Gulshan Kumari resided at Krishna Nagar. Amolak Singh, husband of Satwant Kaur, died sometime in 1978. After the death of Amolak Singh the burden to maintain and manage the family fell on the shoulders of Daljeet Kaur. Daljeet Kaur is a teacher and she takes tuitions. Gulshan Kumari was married to Joginder Pal Singh on 19th December, 1981. (The accused does not admit the marriage with Gulshan Kumari). According to Daljeet Kaur after about 10 or 15 days of the marriage she paid a visit to the house of her sister Gulshun Kumari and she found marks of burns on the face of Gulshan Kumari. The accused did not allow Daljeet Kaur to talk to her sister and Daljeet Kaur went back to her house. Gulshan Kumari came to the house of her mother on 20th February, 1982. On enquiry Gulshan Kumari told that the accused wanted her to transfer the plot of land in his favor, and to force her to do that he had touched hot iron rods on her face. She further told that she was forced to transfer the plot of land bearing No. 27-B, Ganesh Nagar in favor of the accused and she further was made to withdraw the money lying in the bank.

(3) According to Daljeet Kaur a report was lodged with police station Krishna Nagar on 20th February, 1982 and thereafter in March, 1982 Gulshan Kumari filed a petition for divorce against: the appellant which is pending in the court of Shri R. D. Aggarwal. Additional District Judge. She further stated that a" case under section 107 of the Code of Criminal Procedure was registered against the accused at the instance of Gulshan Kumari in March, 1982.

(4) Daljeet Kaur further disclosed that on 4th April, 1982 she was away for her tuition work and she returned at about 4.30 p.m. and she was told by her mother that Joginder Pal had come and forcibly broken open the door and that Gulshan Kaur man had gone to the police station to lodge a report and Joginder Pal had followed her and thereafter Gulshan Kumari had not leturned, Daljeet Kaur lodged the report Ex. Public Witness 12/A at the police station. Thereafter, a missing report of Gulshan Kumari was published in the Hindustan Times dated 12th April, 1982 and also the missing report along with the photograph of Gulshan Kumari was flashed on the television. The police published the 'Hue and Cry' notice (Ex. Public Witness 2iA) regarding the disappearance of Gulshan Kumari on 12th April, 1982. The said notice contained the photograph as well as the physical description of both Gulshan Kumari and joginder Pal Singh.

(5) On 12th April, 1982, a dead body of a woman wrapped in a white Chadar was found near barrack No. 3 Sainik Park Khanpur. Public Witness 35 Sub-Inspector Sobhan Singh held an inquest and after getting the body photographed sent it to the mortuary with a direction that it should be preserved for 72 hours for identification. Dr. Tripathi performed post-mortem on the dead body on the 16th April, 1982. The doctor found the dead body to be of a female aged about 25 years, having height of 170 c.m. and weighing about 70 Kgs. On the external examination no visible injuries were detected. On genital examination the uterus was found to contain pieces of sticks and glasses and vagina lacerated. The viscera was preserved and sent for Chemical examination. The report was negative. The doctor gave the opinion that the death was due to shock as a result of vaginal and uterine injury which was possible by blunt force.

(6) The dead body was found to be wearing one petti-coat, one saree, one brassiere and one green cloth and one Baniyan. The clothes found on the body were sealed in a parcel.

(7) There was no claim to the dead body and after the postmortem it. was disposed of through Sewa Samiti.

(8) On a report (Ex. Public Witness 10/A) dated 9th July, 1982 by one Smt. Kanta Devi (P.W. 5) Joginder Pal Singh accused was arrested by the police on 18th July and that led to the discovery of the crime in question. During investigation it was found that on 4th April, 1982 the accused under the assumed name of Anil Chand Along with Gulshan Kumari had checked in at B Vikas Guest House and stayed there until 6th April, 1982 and thereafter had again checked in at the said Guest House on 8th April, 1982. On 11th April, 1982 Anil Chand approached Kamal Verma (P.W. 15), the manager of Vikas Guest House, and told him that the wife Gulshan Kumari had been taken ill. Kamal Vernia suggested to Anil Chand to bring a doctor, Anil Chand brought Public Witness 2 Shri Duli Chand. Shri Duli Chand on examining the patient advised that she should be taken to a hospital. The doctor found that the patient was unconscious and was gasping for breath. Anil Chand with the help of Public Witness 15 summoned a taxi. According to Sapan Kumar (P.W. 33)-the taxi driver, the accused with the help of another person brought a fat lady with curly heirs covered with a white piece of cloth and both the accused and that woman sat in the back seat. On the instructions of the accused he first took them to the Willingdon Hospital but near the Willingdon Hospital the accused told him (P.W. 33) that he would take the patient to a private clinic, that he took the accused to a Nursing Home at Pusa Road where a lady doctor came out of the Nursing Home and told them that no doctor was available and she advised to take the patient to Ganga Ram Hospital, that he drove the accused to Sir Ganga Ram Hospital where on an examination by a doctor the woman was declared dead. The case further as unfolded by Public Witness 33 is. that after the woman accompanying the accused was declared dead by the doctor he refused to take the accused further, but at the intervention of the public he agreed to drop the accused at Bhagwan Dass Road, that the accused had told him that he had his scooter rickshaw at Bhagwan Dass Road and he be dropped there, that the accused put the dead body in the three wheeler scooter rickshaw and after paying his fare he left.

(9) On an application made by S.H.O. Kishan Kumar specimen of the hand writings and the signatures of Joginder Pal Singh accused were obtained in the presence of Shri Naresh Kumar, Special Executive Magistrate (P.W. 36). The specimen signatures and handwriting of the accused along with the disputed writings Exts. Public Witness 15lA and Public Witness 15/B in the register produced by the Manager of the Vikas Guest House were sent to the Central Forensic Science Laboratory, New Delhi for comparison and report. Dr. V. K. Khanna (Public Witness 44) examined the disputed writings with the specimen writings and he gave the opinion that the writer of the dispuled English & Hindi writings Ql & Q2 and the specimen English writings marked S-1 to S-6 is the same. On 19th July, 1982 Public Witness 1Shri R. C. Yudvanshi, Metropolitan Magistrate held an identification parade regarding the clothes found on the unclaimed dead body alleged to be that of Gulshan Kumari Daljeet Kaur identified the saree, petticoat, blouse and the brassiere as that of the deceased Gulshan Kumari. Kamal Verma identified that the woman accompanying Anil Chand and who had stayed in the Guest House was wearing the saree No. 3, petticoat No. 2 and blouse No. 6. He father identified that the bed sheet No. 7 was given by him to the accused.

(10) The accused in his statement at the trial denied his marriage with Gulshan Kumari. The accused stated that Gulshan Kumari was married to one Harish Kumar. The accused further denied to have stayed at the Vikas Guest House from 4th to 6th April and again from 8th to 11th April, 1982. The accused further denied to have taken any woman on 11th April, 1982 from Vikas Guest House in the taxi of Sapan Kumar. He also denied to have called Public Witness 2 for examining any woman at the Vikas Guest House. The accused denied to have made the entries Ext. Public Witness 15/ and Public Witness 15lB in the register at Vikas Guest House. The accused stated that he is illiterate and could only sign his name. The accused admitted to have married Kanta Choudhary (Public Witness 5) on 16th June, 1982. The accused further admitted that on 9th July, 1982 he was arrested by Sub-inspector Bakshish Singh in Fir No. 268 of 1982 and later on r he was arrested in the case registered at police station Krishan Nagar. The accused further admitted to have given the specimen of his signatures and hand writings before Shri Naresh Kumar, Special Executive Magistrate. The accused further stated that Daljeet Kaur and Satwant Kaur have given false evidence against him. The accused further stated that Daljeet Kaur wanted him to marry Gulshan Kumari but he refused to marry Gulshan Kumari, and thereupon Daljeet Kaur had threatened that in case he did not marry Gulshan Kumari she would falsely implicate him in some case. The accused further stated that Gulshan Kumari is alive and has been concealed by Daljeet Kaur somewhere.

(11) The accused did not produce any evidence in defense.

(12) The prosecution case rests mainly on circumstantial- evidence and it consists of the following pieces of evidence. (1) The marriage of Gulshan Kumari with the appellant in December, 1981. (2) cruel treatment meted out to Gulshan Kumari by the appellant and her return to the house of her mother in February 1982. (3) the reports to 'the police by Gulshan Kumari in February and March, 1982, and the filing of the petition for divorce in March, 1982, (4) disappearance of Gulshan Kumari on 4th April, 1982 and the reports to the police by Daljeet Kaur on 4th April and 10th April, 1982, (5) stay at Vikas Guest House from 4th to 6th April, 1982 and again from 8th to 11th April, 1982, (6) death of the woman accompanying the accused during the stay at Vikas Guest House on 11th April, 1982 (assuming that it was the accused who had stayed at Vikas Guest House under the assumed name Anil Chand), (7) the disposal and the recovery of the dead body on 12th April, 1982, (8) identity of the dead body, and (9) motive.

(13) Marriage : P.W. 26 Daljeet Kaur-the sister and Public Witness 27 Satwant Kaur-the mother have testified that Gulshan Kumari was married to Joginder Pal accused on 19th December, 1981. Public Witness 26 further deposed that on 20th February, 1982 Gulshan Kumari E came to her house and on enquiry she told her that the accused wanted her to transfer her plot of land and with a view to pressurising her to transfer the plot he had touched hot iron rods on her face and also had shaved off her head. Public Witness 26 further deposed that the accused had also forced her to withdraw about Rs. 1,600 or Rs. 1.700 from her bank account. She further deposed that Gulshan Kumari lodged a report at police station Krishna Nagar on 20th April, 1982 (the original report has not been produced). The witness further deposed .that i petition for divorce was filed by Gulshan Kumari which was pending in the court of Shri R. D. Aggarwal, Additional District Judge, and further she had also lodged a report at the police station Shakkarpur, in March, 1982 against the accused. Public Witness 21 Ast Dilbagh Singh testified that on 22nd March, 1982 Gulshan Kumari had lodged a report which was marked to him for investigation and he had called Joginder Pal accused to the police station and later he was arrested under section 1071151 of the Code of Criminal Procedure and he made an entry at serial No. 7 in daily diary. A resister which he had brought with him and its copy is Ex. Public Witness 21/A. There is no document by the exhibit Public Witness 21/A. Exhibit Public Witness 20/A is a copy of report No. 7-A. This document pertains to the investigation done by the police on the report by Kanta Devi. There seems to be some mistake in the P.W. 26 further testified regarding the events of 4th April, 1982 and deposed on 4th April, 1982 she had lodged a report regarding the missing of Gulshan Kumari at police station Krishna Nagar and that she lodged another report on 10th April, 1982. She further deposed that she had produced the photograph Ex. Public Witness 26 /A of Gulshan Kumari and the accused before the police which was seized by the police.

(14) P.W. 27-the mother substantially corroborated the statement of Daljeet Kaur and stated that when Gulshan Kumari came house she had marks of injuries on her face imd her hair had been trimmed. She further testified that on 4th April, 1982 the accused had come to her house in her absence and broke open the door which was bolted from inside and thereafter sat in a shop opposite to her house and that when her daughter Gulshan Kumari went to the police station to lodge a report she say the accused following her and thereafter she had not seen her daughter Gulshan Kumari.

(15) In cross-examination the mother testified that Gulshan Kumari was earlier married to one Harish Kumar and that marriage was arranged by Daljeet Kaur. She further stated the she did not attend the marriage of Gulshan Kumari with the accused and it may be that Gulshan Kumari married the accused of her own. She further stated that she herself saw the acce'ed sitting on the platform at the shop of Bhatia and that her daughter had gone to lodge the report at about 11.30 or 11.45 a.m. and that she saw the accused following Gulshan kumari.

(16) EXTS. Public Witness 11/A and Public Witness 12/A are respectively the reports dated 4th April and 10th April, 1982 lodged by Public Witness 26 at the police station Krishna Nagar. The said reports substantially corroborate the statements made by Public Witness s 26 and 27, in court.

(17) Mrs. Ahlawat, learned advocate for the appellant, contended that in the report dated 4th April, 1982 there is no mention that the accused had forced his entry into the house and thereafter he was seen sitting at the shop of Bhatia and following Gulshan Kumari when she had left for lodging the report. The contention is that the introduction of the above facts in the report Ex. Public Witness 12/A was an afterthought.

(18) We do net agree with this contention. The report dated 10th April 1982 was made long before any facts were known about the murder of Gulshan Kumari and the involvement of the accused in the crime. There was no reason for P.W. 26 to have made any wrong or misleading report on 4th April and 10th April 1982.

(19) On the evidence discussed above we have no hesitation in holding that Gulshan Kumari was married to the-appellant Joginder Pal Singh. Though it is possible that the marriage was a private affairs and that may be for the reason that Gulshan Kumari was earlier married to Harish Kumar, as deposed to by Public Witness 27 and that marriage had proved unsuccessful.

(20) There seems to be no doubt that on or about 22nd March 1982 a report was made by Gulshan Kumari against her husband at the police station Krishna Nagar and as a result of that complaint Public Witness 21 had arrested Joginder Pal accused. P.W. 21 has testified that in his presence Joginder Pal had threatened Gulshan Kumari and her sister Daljeet Kaur that he would commit their murder and thereafter the accused was arrested under section 1071151 of the Code of Criminal Procedure. The. witness stated that he did not register any case under section 506 of the Indian Penal Code against the accused.

(21) P.W. 38 Shri Madhu Sudan Lal Sharma advocate had filed the petition Ex. Public Witness 38/A for divorce under the instructions of Gulshan Kumari. Shri Sharma testified that he had filed the petition under section 12 of the Hindu Marriage Act read with section 13(i)(a) of the Hindu Marriage Act for a decree of nullity of marriage and decree of divorce against Joginder Pal and that Ex. Public Witness 38/A is the copy of that petition and that he had drafted the said petition under instructions of Gulshan Kumari, that the petition was signed and verified by Gulshan Kumari on 15th March, 1982 and she had appeared in the court of Shri R. D. Aggarwal, Additional District Judge on 16th March 1982.

(22) EX. Public Witness 38/A is a detailed petition in which the deceased had made allegations of various acts of cruelty perpetrated on her by the accused. She had also alleged that the accused was earlier married with one Smt. Chand alias Chandna of Jagat Cinema. On a reading of the petition Ex. Public Witness 38 /A and the evidence given by Public Witness 26. Public Witness 27 and Public Witness 38 in court no doubt is left that the accused had treated 'Gulshan Kumari with cruelty and he was forcing her to bring money. We shall, again, revert to this aspect of the case while dealing with motive.

(23) We have earlier noticed the evidence regarding the disappearance of Gulshan Kumari on 4th April, 1982 and we need not repeat it over again. The same day Daljeet Kaur made the report Ex. Public Witness 11/A regarding the disappearance of Gulshan Kumari. The said report was made at police station Krishna Nagar and was recorded at 8.25 P.M. Daljeet Kaur has stated in the said report that on returning home at about 4 p.m. she came to know that Joginder Pal had come at about 12.30 noon in her absence and left after quarrelling with her sister and that at about 3 p.m. her sister had left the house for lodging a report at the police station, and thereafter had not returned. The second report Ex. Public Witness 12 /A on the basis of which the formal report Ex. Public Witness 12/B under section 365 of the Indian Penal Code was registered was made on 10th April, 1982. In this report, as already stated earlier, Daljeet Kaur had stated that Joginder Pal was seen sitting at the shop by her mother and further he was seen following Gulshan Kumari when she had left home for lodging the report.

(24) P.WS. 26 and 27 have in their depositions narrated in detail the events of 4th April 1984 and corroborated the facts stated in the two reports. We have no hesitation at all in believing Public Witness s. 26 and 27 regarding the events of 4th April 1982.

(25) Stay at Vikas Guest House : P.W.I 5 Kamal Verma gave evidence that on 4th April 1982 at 3 p.m. one Anil Chand (identified by the witness in' Court as the accused Joginder Pal Singh) along with a woman had checked into their hotel and stayed in the hotel up to 6th April, 1982 and again he had checked into the hotel on 4th April 1982 and stayed Along with a woman up to 11th April 1982. Verma testified that a register prescribed under section 4 of the Sarais Act is maintained in their hotel and Ex. Public Witness 15 [A is the entry regarding the stay of Anil Chand in the hotel on 4th April, 1982 and Ex. Public Witness 15,/B is the entry regarding his stay on 8th April, 1982. Verma further testified regarding the entries Exts. Public Witness 15/C to Public Witness 15/E in the receipt book regarding the stay charges paid by Anil Chand. Verma further testified that on 18th July, 1982 the accused had come in police custody to his hotel and the police had seized the register containing the entries Exts. Public Witness 15/A and Public Witness 15/B and also the receipt book containing the entries Exts. Public Witness 15/C to Public Witness 15/F. The witness further after seeing the photograph Ex. Public Witness 2 /A testified that the woman accompanying the accused was the same who appears in the said photograph. Ex. Public Witness 2/A is the 'Hue and Cry' notice and contains the photograph of the accused and the deceased Gulshan Kumari.

(26) Regarding the events of April, 1982 Verma testified that on 11th April, 1982 the accused came to him at the counter and told him about the illness of Gulshan Kumari aid he advised the accused to bring a doctor, that the accused brought a doctor from a nearby lane and the doctor after examining Gulshan Kumari camp and told him that Gulshan was in a serious condition and a taxi should be called, that he summoned a taxi from a Taxi Stand at Panchkuin road and the accused with the help of two waiters brought Gulshan Kumari and put her in the taxi, and that at the request of the accused he had provided him with a white bed sheet and that thereafter the accused had left.

(27) In cross-examination the witness stated that on both the occasions the accused had checked in the hotel in bids absence and the entries Exts. Public Witness 15/A and 15/B were made by the accused in the presence of the waiter Ashok Dass, and that entries No. 127, 147 and 157 in the receipt book are in the hand of Ashok Dass. The witness further stated that the accused had come and told him about the illness of Gulshan Kumari at about 9 a.m.

(28) P.W. 2 Duli Chand is the doctor who had come and examined the woman accompanying Anil Chand. Public Witness 2 identified Joginder Pal Singh as the accused who had come and taken him to the Vikas Guest House and Gulshan Kumari as the woman whom he had examined. The witness fixed the identity of the woman from the photograph Ex. Public Witness 2/A.

(29) The next important witness is Public Witness 33 Sapan Kumar- the. taxi driver. Public Witness 33 testified that in 1982 he plied the taxi bearing No. Dlt 1997 belonging to Avtar Singh and that he used to park the taxi on the Panchkuin road taxi stand and that they had given the telephone number of their taxi stand to Vikas Guest House, Paharganj. The witness further testified that on 11th April 1982 at about 10 or Ii a.m. a call was received from Vikas Guest House requisitioning a taxi and that since at that time it was the number of his taxi he went to the Vikas Guest House, that the accused present in court helped by another person brought a fat lady with curly hair wrapped in a white piece of cloth, that lady was put in the back seat of the taxi and the accused also occupied the back seat, that the accused asked him to take them to the Willingdon hospital because the condition of the lady was precarious, that he drove the accused and the woman accompanying him to Willingdon hospital but on reaching near the Willingdon hospital the accused asked him to take them to a private clinic, that the accused represented that woman to be his wife, that he took the taxi to a Nursing Home at Pusa Road, that a lady doctor came out and told them that no doctor was available and advised that the patient be taken to Sir Ganga Ram Hospital, that he took the accused to Ganga Ram Hospital where a doctor after examining the lady declared her dead, I hat he refused to take the accused any further, but at the request of the public which had collected there he took the accused to Bhagwan Dass Road, that the accused told him that he had his scooter rickshaw at Bhagwan Dass Road. that on reaching Bhagwan Dass road the accused put that lady in the three wheeler scooter rickshaw and the accused left after paying the taxi charges. The witness identified the woman accompanying the accused to be Gulshan Kumari from the photograph Ex. Public Witness 2/A.

(30) The witness in cross-examination deposed that the three wheeler scooter rickshaw was parked near Palika Bazar. Connaught Place, and that the accused had brought that scooter rickshaw driving himself up to Bhagwan Dass Road. The witness further stated that they had stayed at the Nursing Home for about 5 minutes and at Sir Ganga Ram Hospital for about 10 to 15 minutes. He further deposed that the police had recorded his statement after about 2 or 2-112 months of the incident and he was shown the photograph Ex. Public Witness 2/A at police station Krishna Nagar. He further stated that he had not seen the accused earlier to that incident, and that after that incident he had seen the accused only that day in court. That witness denied the suggestion that he had not taken any lady in the taxi on 11th April, 1982. He also denied the suggestion that he was giving false evidence.

(31) From the testimony of Public Witness I 5 it is established beyond any doubt that a man under the name Anil Chand accompanied by a woman had stayed at Vikas Guest House from 4th April to 6th April and again from 8th April to 11th April 1982. The entries Exts. Public Witness 15/A and Public Witness 15/B in the register of visitors maintained at the Vikas Guest House prove that a man under the name Anil Chand had stayed in the hotel .on the dates mentioned above. There seems to be absolutely no reason to doubt the veracity of the statement of Public Witness 15 that a woman was staying with Anil Chand during his stay in the hotel. Public Witness I 5 has in clear words stated that on 11th April Anil Chand (identified as the accused) had come to the counter and told him that the woman accompanying him required medical attention, that he suggested to him to call a doctor and that the accused bad brought Public Witness 2 a doctor from a nearby lane and that the doctor had come and told him to call for a taxi as the woman (identified by the witness as Gulshan Kumari) was in serious condition, that he had called a taxi and the accused had taken away Gulshan Kumari in the taxi.

(32) P.WS 2 and 33 have fully supported the above version given by Public Witness 15. We find no reason at all to doubt the veracity of the evidence given by Public Witness s 2,and 33. Nothing has been brought out in their cross-examination to suggest that they had any motive to give false evidence against the accused. They are totally independent witnesses.

(33) We find that the prosecution case that a man under he name Anil Chand accompanied by a woman had stayed at Vikas Guest House from 4th April to 6th April and again from 8th April to 11th April 1982 admits of no doubt. The prosecution case also admits of no doubt that the woman accompanying Anil Chand had fallen ill and Public Witness 2 was called and he examined that woman and declared her to be in a serious condition. We have also no manner of doubt that Anil Chand had removed that woman in the taxi of Public Witness 33 and that woman was declared to be dead at Ganga Ram Hospital and thereafter Public Witness 33 had left Anil Chand at Bhagwan Dass Road from where Anil Chand had taken the dead body in a three winder scooter rickshaw.

(34) The crucial question arises whether Anil Chand was accused Joginder Pal Singh and the woman accompanying him "Gulshan Kumari'. As already stated, specimens of the signatures and the handwritings of Joginder Pal Singh were obtained by the investigating officer in the presence of Naresh Kumar, Special Executive Magistrate (P.W. 36). The specimens of the signatures and the handwritings were sent along with the disputed writings Exts. Public Witness 15/A and Public Witness 15/B to the Central Forensic Science Laboratory for comparison and report. P.W.44 examined the disputed writings with the specimen writings and he gave the following opinion : "ONbalance, handwriting evidence points to the writer of the specimen English writings marked Si to S6 being the person responsible for writing the questioned English and Hindi writings marked Q1 and Q2."

We have very carefully gone through the report of the handwriting expert and also carefully examined the entries Exts. Pw 15/A and Public Witness 15/B, and we find no cogent reason not to accept the report of the handwriting expert. This piece of evidence would establish that it was the accused Joginder Pal Singh who had stayed at the hotel under the assumed name Anil Chand from 4th April to 6th April and again from 8th April to 11th April, 1982.

(35) The accused was arrested on 17th July and was Interrogated on 18th July. It was on the disclosure made by the accused (Ex. Public Witness 39/A) that the police went to Vikas Guest House and seized the register containing the entries Ex. Public Witness 15/A and Public Witness 15/B and the receipt book. It is not understandable how the accused Would know about the Vikas Guest House unless he had stayed there. The police also could not have gathered this evidence unless the accused had made the disclosure and led the police to the Vikas Guest House. This also establishes that it was the accused who had stayed at the Vikas Guest House under the assumed name Anil Chand.

(36) Mrs. Ahlawat vehemently contended that no test identification parade was held for the identification of the accused by Public Witness s 2, 15 and 33 and the identification of the accused by the said witnesses in court has no meaning and it has to be rejected. It is to be remembered that Public Witness s 2, 15 and 33 had known the accused earlier to the occurrence. The dead body recovered on 12th April, and now alleged to be that of Gulshan Kumari, after post-mortem on 16th April was disposed of as unclaimed. There was no clue to that murder. It is only when the accused was arrested in July 1982 on a report by Public Witness 5 that the clue to the murder of Gulshan Kumari came to light. On a disclosure made by the accused, evidence regarding his stay at Vikas Guest House and other important evidence was discovered. The accused had stayed at Vikas Guest House under an assumed name. It must have become necessary to confront the accused with Public Witness 15 to find out if he was the man who had stayed at the Vikas Guest House under the name Anil Chand. Thereafter Public Witness s 2 and 33 must have been contacted. It is likely that it may not have been possible for Public Witness s. 2 and 33 to have recalled to their mind the face and the other description of the accused after over 83 "months of the incident but certainly when the accused was shown to them they would immediately recall the whole incident. Public Witness s 2 has identified the accused as the man who had come to call him and taken him to the Vikas Guest House. Similarly, Public Witness 33 has identified the accused as the man whom he had taken from the Vikas 'Guest House to Sir Ganga Ram Hospital and later on dropped at Bhagwan Dass Road. In the facts and ci'rcumstances of this case we do not agree with Mrs. Ahlawat that the testimony of these three witnesses regarding identification should be discarded simply because there was no test identification parade. Public Witness s 2 and 33 are independent witnesses and has no motive to give false evidence against the accused.

(37) P.WS 2, 15 and 33 had good and sufficient opportunity to see the woman accompanying the accused. They have all from the photograph Ex. Public Witness 2/A identified the woman accompanying Anil Chand as Gulshan Kumari. This further strengthens the prosecution case that it was the accused who was staying at Vikas Guest House under the name Anil Chand.

(38) On 12th April, 1982 the investigating officer had got the dead body recovered from near Sainik Park, Khanpur photographed. Exts. Public Witness s 23 /4 to 23/6 are the photographs of the dead body. We are pained to observe here that photographs Public Witness s 23/5 and 23/6 are so dim that they show nothing and only the face, and that too not clearly, is visible in the photograph Public Witness 23/4. The photographs were taken by Public Witness 23 constable Narayan Singh. The witness stated that from the positives nothing is descipherable. It is equally painful that the investigating officer, although the dead body was available till about 16th April, took no interest to obtain clear pictures of the dead body. He should have known that in such a case photographs are very important for the purpose of identification of the dead body, subsequently.

(39) P.W. 26-The sister on seeing the photograph Ex Public Witness 23/4 stated that from the face in the photograph she can say that the dead body was of her sister Gulshan Kumari   

(40) Lastly, the only other evidence regarding the identity of the dead body is the clothes. The description given of Gulshan Kumari in the Hue and Cry notice is as follows :    "WHEATISHcomplexion, round face, fatty built, small hair, age about 19 years, height 5' 4", wearing Orange Print Saree and pink colour blouse."  

The description given by Daljeet Kaur of 'Gulshan Kumari in the report dated 4th April. 1982 is as follows :    "GULSHAN is aged 19120 years, has wheatish complexion, heavy body, having small hair on her head, height about 5'3/4", wearing saree and blouse of orange colour."  

The investigating officer in the inquest report gave the following description of the clothes, ornaments etc. found on the dead body :    "PRINTED polyester saree, one white dirty petticoat, one dirty brassiere, red blouse, bob cut hair, round face, ear-rings like gold."  

After the post mortem the clothes on the dead body were removed and sealed in a parcel by the doctor.   

(41) In an identification parade held on 19th July, 1982 by Public Witness I Shri R. C. Yadhuvanshi, Metropolitan Magistrate, Daljit Kaur identified the same and the blouse to be the clothes which her sister Gulshan Kumari was wearing on 4th April 1982. Public Witness 15 also identified the said clothes as of Gulshan Kumari. We sent for the clothes and saw them in the court. We find that the description of the clothes given in Ex. Public Witness 2/A to a large extent tallies with the saree and blouse removed from the dead body.   

(42) Mrs. Ahlawat contended that the length of the body given in the post-mortem report is 170 c.m. which would be little over 5' 7" whereas the height given of Gulshan Kumari in Ex. Public Witness 2/A is 5' 4". This discrepancy is there but it is possible that the dead body was not correctly measured by the doctor or Public Witness 26 did not correctly given the height of Gulshan Kumari.   

(43) Motive : The motive for the crime alleged is lust and money. There were two report by the deceased before the incident-one on 20th February 1982 and the second on 22nd March, 1982. Unfortunately. both the reports have not been produced. Public Witness 26 B testified that a report was lodged by Gulshan Kumari at police station Krishna Nagar on 20th February 1982. We know nothing about the nature of that report. Public Witness 21 Asi D'il Bagh Singh gave evidence regarding the second report and he stated that Gulshan Kumari had made a report to the Sho Krishna Nagar which was marked to him by the Sho for necessary action, and that on the said complaint he had summoned Joginder Pal Singh accused and Joginder Pal had in his presence threatened to murder Gulshan Kumari and her sister Daljit Kaur and he had arrested Joginder Pal under section 107/151 of the Code of Criminal Procedure. The witness deposed that he had made uii entry at serial No. 7 in the daily diary register. The witness produced the original daily diary along with a copy of the report. From the deposition of Public Witness 21, it seems. the said copy was exhibited as Ex. Public Witness 21/A but, unfortunately, we do not find that exhibit on the record. However, it is clear from the evidence of Public Witness 21 that Gulshan Kumari had made a written complaint at the police station Krishna Nagar against Joginder Pal Singh and Joginder Pal was summoned and he was further arrested under section 107/151 of the Code of' Criminal Procedure for having held out threats to Gulshan Kumari and her sister. Public Witness 26 Daljeet Kaur testified that after 10 or 15 days of the marriage of Gulshan Kumari she had visited Gulshan Kumari at her house and found burn marks on the cheeks and face of Gulshan Kumari and her eyes were. red. She further deposed that Gulshan Kumari came to their house on 20th February. 1982 and on her enquiry she had told her that Joginder Pal wanted her to transfer the plot of land at 'Ganesh Nagar in his favor and he had further compelled her to withdraw the money laying in her bank account. and that on her refusal to transfer the plot he had touched hot iron rods on her face. The witness further testified regarding the divorce petition filed by Gulshan Kumari. We have next the reports dated 4th April and 10th April 1982 lodged by Daljeet Kaur. In the report dated 4th April. 1982 Daljeet Kaur has referred to the quarrels between the accused and Gulshan Kumari and also about the visit of the accused to their house at about 12.30 noon in her absence. In second report Daljeet Kaur had expressed her apprehensions that Joginder Pal may have taken away Gulshan Kumari forcibly with the intention to force her to do immoral acts. The divorce petition, copy of which is Ex. Public Witness 38/A, is stated to have been filed by Gulshan Kumari on or about 15th March 1982. Public Witness 38 Shri Madhu Sudan Lal Sharma advocate has B given evidence regarding the said petition. He has deposed that the divorce petition, copy of which is Ex. Public Witness 3 81 A, was drafted by him under the instructions of Gulshan Kumari and the petition was signed and verified by Gulshan Kumari on 15th March, 1982 and the same was pending in the court of Shri R. V. Aggarwal, Additional District Judge. The deceased in the divorce petition has in detail, referred to the various incidents and acts of cruelty, perpetrated on her by the accused. She has also stated in the petition how she was forced and threatened to withdraw money from the bank and transfer the' plot of land. She also stated that she was forced to act before the Sub-Registrar as Mrs. Subhash. She further has referred to the various immoral and depraved acts of the husband. :

(44) We have carefully gone through the above discussed evidence and we are of the view that the acts of cruelty alleged, it not wholly, are substantially true.

(45) After the murder of Gulshan Kumari the accused had on 16th June. 1982 married Kanta Chaudhary (P.W. 5). On 9th July 1982, Kanta Devi made a report (Ex. Public Witness 10/A) at the police station Sarai Rohilla in which she alleged that after her marriage the accused took her to his house in Naraina and there he would give her beating every day and he also disposed of all her dowry including silver set, gold necklace. She further alleged that the accused had clipped nor has from the roots and at 12 O'clock in the night left her at a place near Desh Bandhu Gupta Road. Kanta further stated in her report that the accused had threatened her that he had earlier married two girls and left them in the same way. P.W. 5 substantially supported the above allegations in court.

(46) P.W. 43 Dinesh Kumar Chaudhary-brother of Public Witness 5 deposed that the accused had given a 'matrimonial advertisement in this 'Nav Bharat Times' and on seeing the advertisement there Were talks of marriage of Kanta and the marriage finally took place on 16th June, 1982. Public Witness 43 further deposed that on 7th July, 1982 Kanta came to their house at Railway Colony, Paharganj, and she was in a pitiable condition--her hair had been trimmed unevenly and there were marks of violence on her face. Public Witness 43 further deposed that on enquiry Kanta had told them that the accused had assaulted her and cut her long hair and also sold all her ornaments, utensils and garments.

(47) We find no reason at all to disbelieve Kanta 'md her brother Dinesh Kumar Chaudhary. The report Ex. Public Witness 10/A was made by Kanta on 9th July when nothing was known about the murder of Gulshan Kumari. There is a great similarity in the behavior and conduct of the accused towards both the deceased Gulshan Kumari and Public Witness 5 Kanta. It seems, the accused is a sadist and a totally depraved and perverted character and he derives pleasure from; perversion.

(48) Mrs. Ahlawat contended that if Gulshan Kumari had in February left the accused and returned to the home of her parents, in the circumstances mentioned by the prosecution, it is not understandable as to how and why she agreed to go and live with the accused at Vikas Guest House. We find, there is some explanation for the above on the record. On 25th March, 1982 one Bhola Nath Khanna (P.W. 40) ledged a report at the police station Shakkarpur of cheating against Gulshan Kumari and Joginder Pal Singh. The complaint, in brief, was that on 6th February, 1982 Gulshan Kumari under a power of attorney executed by the Kishore Lal had sold to him a plot of land with some structure for Rs. 30,000 and that subsequently he had discovered that 'Gulshan Kumari and her husband are big cheats and he had been cheated by them. He further alleged that Gulshan Kumari had been forging documents under assumed name. P.W. 40 Bhola Nath Khanna supported the above allegations in court.

(49) Gulshan Kumari in the divorce petition alleged that she was forced by the accused to executive some documents. She further alleged that the accused had forced her to have sexual intercourse with his father, brother and some other people and also got her photographs in obscene postures. She had in the divorce petition given the particulars of the photographer but, unfortunately, again, investigating officer made no attempt to procure this evidence. There is a strong likely hood that under threats of black-mailing the accused may have prevailed upon Gulshan Kumari to go with him.

(50) On a consideration of the entire evidence discussed above we are of the view that the prosecution has succeeded in proving beyond any doubt that it was the accused who along with Gulshan Kumari had stayed at Vikas Guest House from 4th April to 6th April and again from 8th April to 11th April 1982. We also have no hesitation in holding that it was Gulshan Kumari who was taken by the accused in the taxi and she was declared dead at Sir Ganga Ram Hospital. We also accept the prosecution case that the dead body recovered from near the Sainik Park, Khanpur, was of Gulshan Kumari and the post-mortem report shows that she died as a result of injuries caused to her vagina and uterus by blunt force.

(51) Finally we come on the question of sentence. The learned Additional Sessions Judge has awarded death sentence. We have given our very careful and anxious thoughts to this aspect of the case. We are of the view that the extreme penalty of death should not be awarded. We accordingly decline the reference. We maintain the conviction and sentence the appellant Joginder Pal Singh to life imprisonment. The reference and the appeal are disposed of accordingly.