Manjit Singh vs State
2009 Latest Caselaw 1718 Del

*                    IN THE HIGH COURT OF DELHI

%                           Judgment reserved on : 16.04.2009
                           Judgment delivered on: 28.04.2009

+                        CRL.A. No.813/2004

       MANJIT SINGH                          ...Appellant
                         Through : Mr.Sumeet Verma, Advocate

                              versus

       STATE                                 ...Respondent
                         Through : Mr.Pawan Sharma, Advocate.


CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?

: PRADEEP NANDRAJOG, J.

1. Vide impugned judgment and order dated 13.05.2004,

the appellant stands convicted for the offence of having

murdered his wife Sushila (herein after referred to as the

"deceased"); as also for the offence of unlawfully

possessing and using a firearm.

2. The case of the prosecution was that on 26.10.2000 a

quarrel had taken place between the appellant and the

deceased. The appellant lost control and shot the

deceased, with a gun belonging to his landlord. Santosh

PW-4, the landlady of the house had witnessed the crime.

Before fleeing the appellant had made an extrajudicial

confession to his neighbour Munni Devi PW-5. On being

apprehended, the appellant had made a confessional

statement in the presence of Vimlesh Kumar PW-2 and

disclosed to the police that he had concealed the used

cartridge and thereafter led the police to the place where

he had concealed the said used cartridge, which was

recovered. He also told the police that he had kept the

gun and live cartridges after committing the murder of

the deceased, in the room of the landlord, which were

got recovered by him from the said room. The ballistic

expert opined that the used cartridge, recovered at the

instance of the appellant, was fired through the gun

recovered at his instance and that the three pellets

recovered from the body of the deceased corresponded

to the lead pellet size of the cartridge used in the said

gun.

3. To put it in a nutshell to sustain the case of the

prosecution, the incriminating evidence would be:-

A. Eye witness account of Santosh PW-4, which

directly would have implicated the appellant.

B. The extra-judicial confession made by the appellant

to Munni Devi PW-5.

C. Recovery of the gun and the used cartridge, at the

instance of the appellant.

4. Vide impugned judgment and order dated 13.05.2004,

convicting the appellant, the learned Trial Judge has held

that the testimony of Santosh PW-4 was credible and the

eye witness account by her established that the

appellant had shot the deceased; that the deposition of

Munni Devi PW-5, to the effect that the appellant had

confessed to her about his guilt was trustworthy; that the

used cartridge was found pursuant to the disclosure

statement of the appellant and from the spot pointed out

by the appellant and that the same was fired through the

gun recovered at his instance and that the three pellets

recovered from the body of the deceased corresponded

to the lead pellet size of the cartridge used in the said

gun, were incriminating evidence against the appellant

and were sufficient to draw the inference of guilt.

5. Information was received by the police when DD Entry

No.25, Ex.PW-11/A, was recorded at 12.55 A.M. on

27.10.2000 by Const. Pokhan Singh PW-11, at police post

Sangam Vihar that a wireless information has been

received that a murder had taken place at I-2 Block, Gali

No.9, House No.433, Sangam Vihar.

6. Taking along a copy of the afore-noted DD Entry, SI

Subhash Malik PW-18, accompanied by Const. Suresh

PW-7 and HC Prakash Chand PW-10, proceeded to the

place of occurrence where they found that the deceased

was lying dead on the floor. On finding no eye witness, SI

Subhash Malik PW-18, made an endorsement Ex.PW-18/A

on copy of the DD Entry Ex.PW-11/A, and at 2.15 A.M.

handed over the same to Const Suresh Kumar PW-7 for

registration of an FIR. Const Suresh took Ex.PW-18/A to

ASI Faiyaz Khan PW-17, who recorded the FIR No.452/00,

Ex.PW-17/A.

7. It is most relevant to note at this stage itself that the

endorsement Ex.PW-18/A records that no eye witness

was found present at the place of occurrence at the time

when the police had arrived there.

8. After the endorsement Ex.PW-18/A was sent to the police

station for an FIR to be registered, Santosh PW-4, the

landlady of the house in a portion of which the appellant

was a tenant, surfaced and claimed that she had

witnessed the appellant murdering the deceased. Munni

Devi PW-5 a neighbour also surfaced and claimed that

she had seen the appellant holding a gun in his hand

soon after the occurrence and has made a confession to

her of having killed his wife. Accordingly, the

investigating officer recorded their statements under

Section 161 Cr.P.C.

9. The appellant arrived at the place of occurrence few

hours after the occurrence, at around 5:00 AM, and was

apprehended by the police on his arrival. As claimed by

the police the appellant was interrogated by SI Subhash

Malik PW-18, in the presence of HC Prakash Chand PW-10

and Vimlesh Kumar PW-2. He made a disclosure

statement Ex.PW-2/A, confessing to his guilt, and stated

that he can get recovered the gun, live cartridges and

used cartridge. Pursuant thereto, the appellant led the

afore-noted persons to a street near the place of

occurrence and got recovered a used cartridge which

was seized vide memo Ex.PW-2/B. Thereafter the

appellant led SI Subash Malik PW-18 and HC Prakash

Chand PW-10 to a room in the building which was in the

possession of the landlord and got recovered a double

barrel gun and 23 live cartridges from near a cupboard

kept in the said room. The gun and the live cartridges so

recovered were seized vide memo Ex.PW-4/A. Santosh

PW-4 produced an arms license issued in the name of her

husband Jaipal which was seized vide memo Ex.PW-4/B.

10. SI Subash Malik PW-18, lifted blood sample earth, earth

control and blood control from the place of the

occurrence and seized the same vide memos Ex.PW-4/D,

Ex.PW-4/E and Ex.PW-4/F respectively. PW-18 prepared

the site plan Ex.PW-18/B of the place of occurrence

recording therein spot „A‟ and „B‟ where the dead body

and the gun respectively were found.

11. Since the deceased was found dead at the place of

occurrence, her body was sent to the mortuary, where

Dr.T Mallo PW-1, conducted the post-mortem at 11.00

A.M. on 29.10.2000 and prepared the post-mortem report

Ex.PW-1/A which records that one fire arm entry wound

was found on the right shoulder region of the deceased;

that the cause of death was hemorrhagic shock as a

result of the said firearm injury which was opined to be

sufficient to cause death in the ordinary course of nature.

12. After the post-mortem, the doctor handed over the

clothes and blood samples of the deceased on a gauze

and three pellets and a wad recovered from the body of

the deceased to Const. Suresh Kumar PW-7, who in turn

handed over the same to SI Subash Malik PW-18, vide

memo Ex.PW-7/A.

13. The seized materials; viz. the blood sample and clothes

of the deceased, blood sample earth, earth control and

blood control were sent to a serologist for a serological

test. Vide FSL report Ex.PW-18/F it was opined that the

blood group of the deceased was „A‟ and that the earth

seized from the place of occurrence was found to be

stained with human blood. The gun, the empty cartridge

and 23 live cartridges recovered at the instance of the

appellant and the three pellets and wad recovered from

the body of the deceased were sent to a ballistic expert

for his opinion. Vide report Ex.PW-18/G, the ballistic

report opined that the gun recovered at the instance of

the appellant is a 12" bore firearm designed to fire

standard 12" cartridge and is in a working condition; that

the used cartridge recovered at the instance of the

appellant has been fired through the left barrel of the

said gun inasmuch as the individual characteristic mark

present on the used cartridge and on the cartridge fired

through the said gun were found to be identical; that the

23 live cartridges recovered at the instance of the

appellant could be fired through the 12" bore firearm;

that the air piston wad recovered from the body of the

deceased corresponds to air piston wad of 12" bore

cartridge; that the three pellets recovered from the body

of the deceased correspond to lead pellet size of 12"

bore cartridge.

14. At the trial, Const. Pokhan Singh PW-11, proved the DD

Entry No.25, Ex.PW-11/A recorded by him. Const. Suresh

Kumar PW-7, proved having handed over the clothes and

blood sample of the deceased as also the pellets

recovered from the body of the deceased to the IO vide

memo Ex.PW-7/A. SI Madanpal PW-8, a draftsman

proved the site plan to scale Ex.PW-8/A and deposed that

he had prepared the same on 11.01.2001 with the

assistance of Santosh. Dr.T. Mallo PW-1 proved the post-

mortem report Ex.PW-1/A. Const. Yogender PW-3, a

photographer, deposed and proved that the photographs

Ex.PW-3/1-A to Ex.PW-3/4-A; negatives whereof were

Ex.PW-3/1 to Ex.PW-3/4 were taken and developed by

him. SI Bega Ram PW-14, a finger print expert, deposed

that he had lifted chance print from the place of

occurrence and the gun recovered at the instance of the

appellant on the date of the incident but no chance prints

could be developed. Vimlesh Kumar PW-2, deposed that

the appellant had made a disclosure statement Ex.PW-

2/A and had got recovered an empty cartridge in his

presence. Const. Suresh Kumar PW-9, the brother of the

deceased, deposed that he had identified the dead body

of the deceased and that the relations between the

family of the deceased and the appellant were strained

as the family of the deceased had strongly objected to

the marriage of the deceased with the appellant.

15. Ignoring the testimony of few formal police witnesses

who deposed to the receipt of various articles in the

malkhana and further movement thereof to the FSL, we

note the testimony of such witnesses, in respect whereof,

submissions were made during argument of the appeal

on the issue, whether Santosh PW-4 was at all an eye

witness and whether Munni Devi PW-5 truthfully deposed

that the appellant had confessed to her about his guilt

soon after committing the murder of the deceased; if

yes, the evidentiary value thereof.

16. Since much turns on the testimony of Santosh PW-4 and

Munni Devi PW-5 in the present case, we proceed to note

the relevant portion of the examination-in-chief of the

said witnesses. The relevant portion of the examination-

in-chief of Santosh PW-4, reads as under:-

"...........I identify accused Manjeet Singh today present in the Court also who also was a tenant in my house at the time of incidence. Accused used to reside there along with his wife. He was residing in our house as tenant prior to six month on the date of incident. Accused used to quarrel with his wife when he was residing at our house as a tenant. I cannot tell why accused used to quarrel with his wife. The name of the wife was Sushila. It was a Deepawali day of last year, I was present at my house, after about 9 P.M., accused Manjeet Singh quarreled with his wife, my husband had already gone for his duty. On the Deepawali Day, we had worship the gun belonging to my husband and it was kept at the place of worship in our room. Accused went to the said room and picked up the said gun from my room and ran towards his room. When I followed accused, he directed me that I should keep away myself and he fired shot from the said gun at his wife Sushila. Accused picked up our gun after about 11 P.M. at the said time, children burning crackers etc. Sushila received bullet injuries at her neck. The other tenants were also present in their respective rooms and the doors of their rooms were closed. On hearing the noise of bullet shot, other neighbours also came there. Munni was one of the neighbour amongst the said neighbours. Accused Manjeet Singh threatened me if I informed police he would kill me also. Accused took out empty cartridges from the gun and had thrown the gun towards me. Immediately after the incident accused had ran away from the spot and reached back to his room after a long time at that time police had also reached and he was apprehended by the police. Police had prepared site

plan of the place of the incidence at my instance............."

17. On being cross-examined about the identity of the gun

used by the deceased in committing the murder of the

deceased, Santosh PW-4, stated that the gun recovered

at the instance of the appellant is not the gun which was

used for murdering the deceased. On being cross-

examined about the factum of the appellant firing at the

deceased, she stated that: 'I did not see the accused

firing at his wife'. On being questioned about the live

cartridges which were recovered ostensibly at the

instance of the appellant, she replied that: 'the belt of 23

live cartridges always used to remain in the almirah

along with the gun'. On being cross-examined about the

use of the gun by her husband, she stated that: „my

husband never used to keep the gun loaded'. On being

cross-examined about the place of recovery of the gun in

question, she stated that: 'police covered the gun from

the gallery of the house. There is distinct on between the

gallery which I am referring and my room'. (The said

portion is a verbatim reproduction of the cross-

examination of the said witness). On being cross-

examined about the conduct of the appellant after the

incident, she stated that: 'the accused did not talk to any

one and ran away from the spot immediately after the

incident'.

18. It is relevant to note that the witness has not deposed

that she had heard the cries of the deceased on the day

of the incident.

19. The relevant portion of the examination-in-chief of Munni

Devi PW-5, reads as under:-

"..........On the day of Diwali last year I was present at my house and we were busy in Pooja etc. At about 11.30 pm I heard noise and saw Smt. Santosh was running outside her house. I went near the grill of the roof of accd. Manjeet Singh and I peeped through the said grill inside the room of the accused. Accused was present there and when I asked him as to what had happened, accd. told me "Didi maine Sushila ko Mar Diya" . Sushila was lying in floor of the room in dead condition and she was bleeding. When I asked Manjeet Singh accd. as to with what weapon he killed his wife accd. told me that he picked up the gun of his landlord which was kept for pooja in their room as the landlord were not present in the said room and were busy in distributing sweets. And I also saw that accd. was holding the said gun in his hands when I reached to the spot Smt. Santosh was knocking the door of accused. I called police on telephone and the said call was made by another person on my request. In my presence police had arrested accd. though he wanted to run away......."

20. On being cross-examined about the identity of the gun

used by the appellant for murdering the deceased, Munni

Devi PW-5 stated that she cannot identify the said gun.

She admitted during cross examination that her

statement recorded by the police under Section 161

Cr.P.C. does not record that the appellant told her that he

had picked up the gun of his landlord from the pooja

room and had killed his wife by firing from the gun. On

being cross-examined about the presence of other

persons at the time of the incident, she stated that: 'at

the time of the incident there was no one present except

me, Santosh, accused Manjit Singh and injured namely

Sushila. On being questioned as to what had attracted

her attention to the place of the occurrence on the date

of the incident she had replied that: 'At the time of

incident I heard the gun shot and also saw smoke coming

from the room of accused and I also heard the cries of

Sushila.'

21. In his examination under Section 313 Cr.P.C. the

appellant denied everything and pleaded false

implication. He stated that he was employed as a driver

and was performing his duty at the time of the

occurrence. That when he returned home after

performing his duty he learnt that the deceased had

been murdered and he was illegally apprehended by the

police.

22. The appellant did not lead any evidence in his defence.

23. As already noted hereinabove, believing the testimony of

Santosh PW-4 and Munni Devi PW-5 to be correct and

holding that the recovery of incriminating articles at the

instance of the appellant further clinches the issue that

the appellant had committed the murder of the

deceased, the learned Trial Judge had convicted the

appellant.

24. Having considered the case set up by the prosecution in

its entirety, we find it difficult to agree with the

conclusion arrived at by the learned Trial Judge because

of following reasons namely, (i) the version of Santosh

PW-4, that she had witnessed the appellant murdering

the deceased is shrouded with suspicion; (ii) that the

evidence on record bring out faint traces of the

possibility that the witness was deposing falsely to save

her husband; (iii) that Munni Devi PW-5, is a „wholly

unreliable‟ witness and therefore no reliance could be

placed on her testimony and that she has made material

improvement while deposing in Court; (iv) certain

material circumstances have not been explained by the

prosecution which leads to a conclusion that the ocular

evidence led by the prosecution is seriously flawed; (iv)

the investigation conducted in the present case is most

tardy which entitles the appellant to get benefit of doubt;

(v) the recovery of the incriminating articles at the

instance of the appellant is tainted and (vi) mere

recovery of the incriminating articles at the instance of

the appellant is insufficient to nail the appellant.

25. Elaborating our reasons for our summarization herein

above, as noted in foregoing paragraphs, the

endorsement Ex.PW-18/A made by SI Subhash Malik at

the spot just after he reached the spot on receiving

information of the crime records that no eye witness was

found present at the place of occurrence at the time

when the police arrived therein. In this regard, it is of

importance to note the testimony of SI Subash Malik PW-

18 to the effect that he had made enquiries from the

persons present at the place of the occurrence on

arriving at the spot, but no eye witness was found

available. The fact that Santosh PW-4, did not disclose

her version of witnessing the incident to the police at the

first available opportunity leads to a strong presumption

that she was buying time to come up with a plausible

story regarding the incident. We note that Santosh has

not stated that she was scared or was confused after

witnessing the crime and regained her composure after

some time. Another circumstance which strengthens the

presumption that Santosh was not an eye witness as

claimed by her is that the spot wherefrom she ostensibly

witnessed the crime is not indicated in the rough site

plan Ex.PW-18/B nor in the site plan to scale Ex.PW-8/A.

SI Subash Malik PW-18 and SI Madanpal PW-8, who had

prepared the rough site plan and site plan to scale of the

place of the occurrence claimed to have prepared the

said site plan at the instance of Santosh.

26. The decision of the Supreme Court reported as Shinghara

Singh v State of Haryana AIR 2004 SC 124 may be noted

on this issue, wherein it has been held that essential

features should be shown in the site plan and the

omission to show them in the site plan cannot be said to

be a mere lapse on the part of the investigating agency.

27. Continuing the discussion pertaining to the credibility of

the testimony of Santosh PW-4, we note that she had

stated in her cross-examination that she had not seen

the appellant fire a shot at the deceased from the gun

belonging to her husband. Surprisingly enough she has

deposed that she saw the accused enter her house and

pick up the gun. She deposed that she followed the

accused. She deposed that she saw the accused take

out the used cartridge and thereafter threw the gun

towards her. She deposed that she ran away. It is just

not possible for Santosh not to have witnessed the

appellant shoot at his wife, if indeed she was present at

the spot and deposed the facts which she claimed to

have seen. It is an undisputed fact that the gun used for

murdering the deceased belonged to the husband of

Santosh. In such circumstances, the most likely suspect

for committing the murder of the deceased would have

been the husband of the deceased. Obviously, the

endeavour of Santosh would have been to shield her

husband at all costs. The seizure memo Ex.PW-4/A

pertaining to the gun in question records that the gun

was recovered from the room of Santosh and her

husband. As noted above PW-4 has testified in her

examination-in-chief that after using the gun and taking

out the used cartridge, the accused ran away from the

spot. She did not depose that she, innocently, picked up

the gun and kept it inside her room. SI Subash Malik PW-

18 and HC Prakash Chand PW-10, the witnesses to the

recovery of the gun, have deposed that the gun was

recovered from the room of Santosh and her husband.

But, as noted herein above, while noting the cross-

examination of Santosh she stated that the gun was

recovered from the courtyard of her house. Obviously,

Santosh was aware that she was not to state as to how

the gun came back to her house and therefore it is

obvious that the only thing she could depose to was that

the gun was picked up from the courtyard of her house;

a fact which is obviously not correct. It shows her

determination to save her husband for the reason the

gun used belonged to her husband. We find it strange

that the belt containing 23 live cartridges, which

admittedly belonged to the husband of Santosh, have

been shown to be recovered at the instance of the

appellant, as if Santosh‟s husband had entrusted the

same to the appellant. As noted above, in cross-

examination Santosh has admitted that her husband

used to keep the live cartridges inside the almirah. She

has not deposed that the live cartridges were kept at the

place of worship along with the gun. This casts a doubt

even on the recovery. We shall elaborate on this issue a

little later.

28. The version of Munni Devi PW-5, that the appellant had

confessed his guilt to her after committing the murder of

the deceased is inherently improbable. As already noted

herein above, Munni Devi had deposed that the noise of

the gun shot, and the smoke coming from the room of

the appellant and the cries of the deceased had attracted

her attention to the place of the occurrence on the date

of the incident. It is highly unlikely that Munni Devi who

was present in the house adjoining the house of the

appellant at the time of the incident was able to make

out that the noise which came from the room of the

appellant, was that of a gun shot, for the reason, there

would have been the noise of bursting crackers all

around her, inasmuch as the incident had occurred on

Deepawali day. It is also further unlikely that Munni Devi,

who was present in the house adjoining the house of the

appellant, could have heard the cries of the deceased

amidst the noise of the bursting of crackers particularly

when Santosh who was present in the same house as

that of the deceased did not hear any cries of the

deceased. Thus, if Munni Devi was not present in the

house where the incident took place, where was the

occasion for the appellant to have confessed to her inside

the house. As noted above, the confessional aspect is an

improvement in the statement made by Munni Devi in

Court. She has not so stated to the police and does not

find any mention in her statement Ex.PW-5/DA recorded

by the investigating officer.

29. A perusal of the testimony of Munni Devi PW-5, contents

whereof have been noted herein above, would reveal

that the testimony of Munni Devi is an inchoate mix of

irreconcilable opposites. Munni Devi had firstly deposed

that she had heard a noise on the date of the incident

whereupon she had seen Santosh running outside her

house. That thereafter she had peeped into the room of

the appellant through the grill of the said room

whereupon the appellant had confessed his guilt to her.

She had further deposed that she had seen Santosh

knocking the door of the appellant when she had reached

the spot. Munni Devi had not stated in her testimony that

what had happened between the time period she had

peeped through the grill of the room of the appellant and

when she reached the spot. Likewise, Munni Devi has not

stated in her testimony that what had happened between

the time period she had seen Santosh running outside

her house and Santosh knocking the door of the room of

the appellant. It is also relevant to note that Santosh has

not deposed a word in her testimony about the locking of

the room by the appellant on the date of the incident.

The irreconcilable opposites stated by Munni Devi are

that when she heard noise she saw Santosh running

outside her house and in the next breath deposing that

when she went to the spot she saw Santosh knocking the

door of the room where the crime took place.

30. There are material contradictions in the testimony of

Munni Devi vis-à-vis the other ocular evidence led by the

prosecution which reinforces the presumption that Munni

Devi is a planted witness. Munni Devi has deposed that

the appellant had attempted to flee from the place of the

occurrence but was apprehended by the police on its

arrival; whereas the other witnesses of the prosecution

namely Santosh PW-4, SI Subash Malik PW-18 and HC

Prakash Chand PW-10, have deposed that the appellant

had fled from the place of the occurrence after

murdering the deceased and was apprehended when he

returned to the place of the occurrence few hours after

the police arrived.

31. Even the evidence pertaining to the recovery of the gun

in question is conflicting and contradictory. As per

Santosh, the gun was recovered from the gallery i.e. a

common space outside. As per the recovery memo

Ex.PW-4/A and the other witnesses the gun and the belt

containing 23 cartridges were recovered from a place

near the cupboard inside the room where Santosh and

her husband resided.

32. For reasons noted herein above, Santosh could not have

ever deposed that the gun was recovered from inside her

room because this required her to explain as to how the

gun came back inside her room. The fact that the gun

and the belt containing the cartridges were lifted from

the room appears to be correct for the reason qua the

belt containing 23 cartridges, there is no evidence that

the said belt, which was in the custody of the husband of

Santosh, was accessed by the appellant. Thus, there is

no scope but to arrive at either one of the two

conclusions. Firstly that Santosh is a complete liar or

secondly the gun was used by somebody who not only

had an access to the gun but even to the belt containing

the cartridges and after using one out of the 24

cartridges in the belt kept back the gun and the belt at

the same place or nearby from where the same were

picked up.

33. Santosh PW-4 has categorically deposed that the gun in

question was never kept loaded by her husband. There is

no evidence to show that the husband of Santosh or the

appellant or any one else had loaded the gun in question

on the date of the incident. The question as to how the

gun in question came to be loaded on the date of the

incident remains unanswered except on the theory that

the belt had 24 cartridges, one out of which was used.

But, for the same, no evidence has been led by the

prosecution that the belt had 24 cartridges, one out of

which was used.

34. Why was husband of Santosh not examined as a witness

has to be explained by the prosecution for the reason he

was the licensed holder of the gun and purchased the

ammunition to be used in the gun. He had to explain as

to what number of bullets he had purchased and had to

account for each one of them.

35. Where an article is recovered from a place accessible to

all, the recovery thereof pursuant to the disclosure

statement by an accused is rendered meaningless. (See

the decision of Supreme Court reported as State of H.P. V

Inder Singh AIR 1999 SC 1293). In the instant case, the

recovery of the gun from inside the room of Santosh and

her husband, at the instance of the appellant, inspires no

confidence. The recovery of the used cartridge from the

street accessible to all also does not inspire any

confidence. The gun and the used cartridge were not

found to be concealed and were visible to all. Applying

the ratio laid down by the Supreme Court in Inder Singh‟s

case (supra), no sanctity could be attached to the said

recoveries.

36. Mere recovery of incriminating articles at the instance of

an accused person, without there being any other

evidence to connect the accused with the commission of

the crime, is insufficient to bring home the guilt of the

accused. (See the decisions of the Supreme Court

reported as Narinbhai Haribhai Prajapati v Chhatarsinh &

Ors AIR 1977 SC 1753, Surjit Singh v State of Punjab AIR

1994 SC 110 and Deva Singh v State of Rajasthan 1999

CriLJ 265).

37. Before concluding, we note that Const. Suresh Kumar

PW-9, the real brother of the deceased and a police

officer himself had a grudge against the appellant

inasmuch as the family of the deceased was opposed to

the marriage of the deceased with the appellant; facts

deposed to by Const. Suresh Kumar; therefore the

possibility that the appellant was falsely implicated at the

instance of the family of the deceased particularly Const.

Suresh Kumar cannot be ruled out.

38. In view of above discussion, we hold that the prosecution

has not been able to prove beyond reasonable doubt that

the appellant had committed the murder of the deceased

Sushila.

39. The appeal is allowed. The appellant is acquitted of the

charges framed against him. The appellant is directed

to be set free unless required in any other case.

(PRADEEP NANDRAJOG) JUDGE

(ARUNA SURESH) JUDGE April 28, 2009 Dharmender