Smt.Rajwant Kaur vs State Of Delhi
2009 Latest Caselaw 5352 Del

        *          IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Judgment reserved on: December 04, 2009
                                Judgment delivered on: December 22, 2009


+       CRIMINAL APPEAL NO.29/1995

        SMT. RAJWANT KAUR                              ..... APPELLANT
                         Through:           Mr. Sanjay Suri, Advocate

                       Versus

        STATE OF DELHI                                  ..... RESPONDENT
                                 Through:   Mr. Sunil Sharma, APP


        CORAM:
        HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
        HON'BLE MR. JUSTICE AJIT BHARIHOKE


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 Digest ?                          Yes


AJIT BHARIHOKE, J.

1. This appeal is directed against the impugned judgment dated

09.12.94 in Sessions Case No.26/89 arising out of FIR No.420/88 P.S.

Tilak Nagar convicting the appellant for the offence punishable under

Section 302 IPC and Section 201 IPC as also the consequent order on

sentence dated 12.12.1994.

2. Briefly stated, case of the prosecution is that on 24.09.88 on the

receipt of information about the murder of a child in House No.C-36-B,

Tilak Vihar, DD No.66B was recorded at the P.S. Tilak Nagar on

24.09.88 at 10:15 pm. The SHO, on being informed about the

information, directed that a copy of DD report be separately sent to SI

Anil Kumar and he himself proceeded to the spot of occurrence along

with the staff.

3. The information received vide DD No.66B was also conveyed to

the police post Tilak Vihar, where it was recorded as DD No.26 dated

24.09.88 and copy thereof was forwarded to SI Anil Kumar who also

reached at the spot along with the staff.

4. SI Anil Kumar met the complainant Jagrup Kaur (PW1) at the spot

of occurrence and recorded her statement Ex.PW1/A, which reads thus:

"I reside at the above noted address with my husband and other family members including Smt. Surinder Kaur, Devrani (Husband's Brother's wife) whose husband was killed in 1984 riots. My aforesaid sister in law ( Devrani) Surinder Kaur has two daughters and one son. The name of her son is Sukhdev Singh alias Shunti. My sister in law Surinder Kaur is employed with Vijaya Bank, Connaught Place New Delhi. Her two daughters and son Sukhdev Singh alias Shunti aged 4 years are studying. In her absence, I look after her children. Smt. Rajwant Kaur whose husband was also killed in 1984 riots, reside with her only daughter aged about 10/11 years in my neighbourhood in C-36-B. Since Rajwant Kaur reside alone therefore, my father in law treats her out of sympathy as her daughter. As a result whereof, Rajwant Kaur visits our house and takes food etc there. Kirpal Kaur, my sister in law ( Nanand i.e. husband's sister aged about 22/23 years has become more intimate with Rajwant Kaur, we after seeing a boy for Kirpal Kaur in Shahdara, have fixed her marriage in October. Today, I alongwith my mother-in-law came back from house of the aforesaid boy at about 4.30 p.m. A little later, my Devrani (Husband's brother wife) Smt. Surinder Kaur also reached house after her duty hours and enquired about her son Shunti. Whereupon, the family members told her that he has gone for tuition. When Shunti did not return home upto 5-00 p.m., my sister in law (devrani) sent her elder daughter to enquire about Shunti. She on her return, Informed that Shunti has not gone for tuition today Shunty goes for his tuition from 3.00 to 5.00 p.m. On hearing this when I enquired about Shunti in the neighbourhood, aforesaid Smt. Rajwant Kaur told that a little

earlier she had given him the toffee and he would be playing nearby. Where upon my Devrani Surinder Kaur, Nanand Kirpal Kaur, other members of the family and myself started searching Shunti in the block and park. Smt. Jagrup Kaur also accompanied us but she after some time, separated herself, from us. After searching a lot, when Shunti could not be traced out, Kirpal Kaur my nanand told that Rajwant Kaur was not happy with her (Matrimonial) alliance and she wanted to get married with some of her relative. She further told that she ( Rajwant Kaur) had also suggested to elope with her and when she refused. Rajwant Kaur, had threatened her today itself in the morning that she would not allow her marriage to be solemnised by way of creating hurdle after getting her some family member killed. Whereupon we got suspicion that that Rajwant Kaur might have not brought her threat to truth when she separated herself from us. Thereafter we returned to our house. At that time my father in law Sh. Pritam Singh had also returned from his work. When we narrated the entire aforesaid facts to him, he told us that in laws of Kirpal Kaur had telephonically informed him in the office to the effect that some lady had telephonically asked them not to marry with Kirpal Kaur and had also threatened. That fact also sic our suspicion and my father in law Sh. Pritam Singh, Nanand Kirpal Kaur, Jaspal Singh who resides in house No. C-32-A and had come to our house and myself went to the house of Rajwant Kaur. The door or her house was bolted from inside. We knocked in order to get the same opened. After some time when Rajwant Kaur opened the door, she was looking perplexed and her face was sweating. I asked Rajwant Kaur that Shunti was with her and she should tell as to where he was. Whereupon, Rajwant Kaur disclosed with her folded hands that she has committed a mistake as she has killed Shunti by way of strangulating him. Thereafter, Rajwant Kaur showed us the dead body of Shunti lying behind a wooden plank in the left of the kitchen of her house after removing the plank. There was a white cloth loose around the neck of Shunti, and a readymade under wear gagged in his mouth. Rajwant Kaur, in this manner has murdered Sukhdev Singh alias Shunti, the son of Smt. Surinder Kaur, my Devrani, by way of strangulating him on account of enmity with us."

5. SI Anil Kumar, PW28 after endorsing the statement PW1/A sent it

to the police station for the registration of the case and on the basis of

said Rukka, formal FIR under Section 302 IPC was registered against

the appellant.

6. SI Anil Kumar conducted the inquest proceedings and sent the

dead body for post mortem. Dead body was identified by Jagrup Kaur,

PW1 and grandfather of the deceased Sh. Pritam Singh. Subsequent

investigation was taken over by the SHO, Shri S.K. Bhatnagar, PW26.

He prepared the rough site plan Ex.PW26/A and got the place of

occurrence photographed from various angles. On inspection of the

spot, one table Ex.P-2 and one "mooda" Ex.P-3 were found in the

kitchen of the appellant. Those articles were taken into possession

along with the wooden plank Ex.P-1. Investigating Officer also

recorded the statements of the witnesses and arrested the appellant

who was produced before him by the witnesses. The scaled site plan

Ex.PW25/A was also got prepared. The exhibits seized from the spot

were sent for CFSL examination and the CFSL report Ex.PW26/C was

obtained. Post mortem report Ex.PW26/D was also collected. On

completion of investigation, appellant was challaned and sent for trial.

7. Appellant was charged for the offences punishable under Section

302 IPC and Section 201 IPC. She pleaded innocence and claimed to

be tried.

8. In order to bring home the guilt of the appellant, prosecution has

examined 28 witnesses. There is no eye witness to the incident and

the prosecution case is based upon the circumstantial evidence. The

material witnesses examined by the prosecution to prove the motive

on the part of the appellant, recovery of the dead body of the

deceased from loft of the kitchen of the house of the appellant and the

extra judicial confession made by the appellant are PW1 Jagrup Kaur

(complainant), PW3 Jaspal Singh, PW11 Surender Kaur, mother of the

deceased and PW12 Smt. Kirpal Kaur. The other material witnesses to

prove that the deceased Shunty was last seen at 2:30 pm when the

appellant got him a toffee, are PW5 Prabh Kaur and PW2 Surender

Singh. The third set of witnesses is PW8 Khehar Singh and PW13

Davinder Singh, who were examined by the prosecution to prove that

the appellant called up Davinder Singh PW13 on the telephone of Kehar

Singh PW8 and tried to dissuade him from marrying PW12 Kirpal Kaur

and even threatened him with dire consequences if the marriage with

Kirpal Kaur was not called off. The other set of important witnesses are

the Investigating Officers, PW26 Inspector S.K. Bhatnagar and PW28 SI

Anil Kumar, besides PW10 Dr. Bharat Singh, who conducted post

mortem examination on the body of the deceased and opined that the

child died due to asphyxia as a result of strangulation.

9. The appellant in her statement under Section 313 Cr.P.C. claimed

to be innocent. While denying the incriminating evidence produced

against her, she claimed that the dead body of the deceased was

recovered from house No.C-34-B. She also claimed that PW 12 Kirpal

Kaur was the real culprit who had been initially detained by the police

along with one Santokh Singh, but was later released at the instance of

her father Pritam Singh. The appellant explained that Kirpal Kaur

wanted to marry Santokh Singh. PW11 Smt. Surender Kaur, however,

was opposed to said marriage as she was also having an affair with

Santokh Singh. Because of that Kirpal Kaur nursed a grudge against

Surender Kaur and because of that, she in order to take revenge, had

killed deceased Shunty, son of Surender Kaur. The appellant further

explained that the police, in league with Pritam Singh, had created

false evidence against her and falsely implicated her in this case.

10. The Learned Trial Court relying upon the prosecution evidence

concluded that there was sufficient circumstantial evidence on the

record which if taken together formed a chain so complete in itself to

point towards only hypothesis of the guilt of the appellant and

convicted her on both the counts i.e. Section 302 IPC and Section 201

IPC.

11. Before adverting to rival contentions made on behalf of the

parties, it would be useful to have a look on the law relating to the

circumstantial evidence. In the matter of Padala Veera Reddy v.

State of A.P., 1989 Supp (2) SCC 706, it was laid down by the

Supreme Court that when a case rests upon circumstantial evidence,

such evidence must satisfy the following tests:

"10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

12. In the matter of Sharad Birdhichand Sarda V. State of

Maharashtra, (1984) 4 SCC 116, the Supreme Court, while dealing

with the nature and character of proof required in a criminal case

which rests on circumstantial evidence alone referred to the judgment

in the matter of Hanumant Vs. State of Madhya Pradesh, AIR 1952

SC 343 and observed thus:

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, 1973CriLJ1783 where the following observations were made:

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

13. In the light of the above enunciated principles of law, we now

proceed to consider the submissions made by the respective parties.

14. Learned counsel for the appellant has assailed the impugned

judgment on the ground that the prosecution has failed to establish

either the motive on the part of the appellant to kill the deceased or

the recovery of dead body from the kitchen of her house at her

instance or the extra judicial confession purported to have been made

by her. It is also submitted that even the testimony of PW2 Surender

Singh and PW5 Prabh Kaur who were examined to establish that the

deceased was seen alive by them on 24.09.88 at 2/2:30 pm and that

he was also seen going upstairs towards the house of the appellant is

not reliable. In support of this contention, learned counsel for the

appellant submitted that even the medical evidence does not support

the aforesaid story propagated by the prosecution. It was pointed out

that as per the post mortem report Ex.PW10/A, the deceased died on

22/24 hours before the post mortem was conducted. The date and

time of conducting of post mortem as per the report is 25.09.88 at 1:00

pm and if the time of death is fixed at 24 hours earlier to the post

mortem, it is somewhere around 1:00 pm on 24.09.88 which belies the

version of PW2 and PW5 that they had seen the deceased Shunty alive

on 24.09.88 at 2:30 pm. In view of the above, learned counsel for the

appellant has urged us to infer that the circumstantial evidence led by

the prosecution is not sufficient enough to support the hypothesis of

guilt of the appellant.

15. Learned counsel for the State, on the other hand, argued in

support of the impugned judgment. He submitted that the prosecution

has been successful in proving the motive on the part of the appellant

and that the deceased was last seen at 2:30 pm on 24.09.88, going

towards the house of the appellant besides the recovery of dead body

from the kitchen of the appellant's house at her instance on 24.09.88

at about 10.00 pm and also the extra judicial confession made by her

in presence of the witnesses i.e. PW1 Jagrup Kaur, PW3 Jaspal Singh

and PW12 Kirpal Kaur. As regards the medical evidence, learned

counsel for the State submitted that as per PW10 Dr. Bharat Singh, the

time of death was fixed at 22 to 24 hours before the post mortem

examination on 25.09.88 at 1:00 pm and if the time of death is worked

out backwards from the time of commencement of post mortem

examination, it implies that the death occurred between 1:00 pm to

3:00 pm, which evidence is in consonance with the testimony of PW2

Surender Singh and PW5 Prabh Kaur who had stated that the appellant

had thrown at 2:30 pm a fifty paise coin and told PW5 Prabh Kaur to

give toffees for the said amount to the deceased Shunty.

16. We have considered the rival contentions and perused the

material on record.

17. So far as the motive is concerned, the case of the prosecution as

set up in the charge sheet is that the appellant was nursing a grudge

against PW12 and her family because they had fixed the marriage of

Kirpal Kaur PW12 with one Davinder Singh PW13 of Shahdara, whereas

the appellant wanted Kirpal Kaur to marry some person known to her

and when she placed that proposal before Kirpal Kaur, she declined to

break off the marriage saying that she would go by the choice of her

parents. PW12 Kirpal Kaur is the witness examined to prove said

motive. Though Kirpal Kaur in her examination-in-chief had supported

said story, but in her cross-examination, when asked a pointed

question, she deposed that the appellant had not told her the name of

the boy with whom the appellant wanted her to marry and that the

appellant also did not tell her anything about said boy or his family or

his profession or place of residence etc. This makes her evidence

suspect. Further, PW12 Kirpal Kaur in her examination-in-chief has

stated that when she declined the proposal of the appellant to elope

and marry the boy of her choice, the appellant had threatened her that

if she failed to elope with her, the appellant would get killed some

member of her family with a view to create obstruction in her marriage.

If that was so, then on coming to know that her nephew Shunty was

missing, PW12 Kirpal Kaur, under the natural course of circumstances,

was expected to tell her family members about the said threat having

been extended by the appellant. This, however, is not the case. As per

the testimony of PW1 Jagrup Kaur, PW11 Surender Kaur and PW12

Kirpal Kaur, the appellant had also joined them in search of Shunty, but

Kirpal Kaur did not say a word about the aforesaid proposal and threat

extended by the appellant till the appellant left the search group after

some time. This conduct on the part of Kirpal Kaur, being highly

unnatural, makes her testimony regarding motive suspect.

18. Learned counsel for the State has submitted that much

importance cannot be attached to the failure on the part of PW12

Kirpal Kaur to promptly tell about the threat extended by the appellant

in the event of her refusal to elope and marry the boy of the choice of

the appellant because PW8 Kehar Singh and PW13 Davinder Singh

have also supported the theory of the threat extended by the

appellant. In this regard, learned counsel for the State has pointed out

that PW8 Kehar Singh stated in the court that on 24.09.88, a lady

called him on telephone and told him that she was calling from Tilak

Vihar and wanted to speak to Davinder Singh. He told the lady to call

after half an hour and went to call PW13 Davinder Singh. After some

time, aforesaid lady rang up again and he handed over the receiver to

PW13 Davinder Singh. He has stated that PW13 Davinder Singh, after

receiving the call, got nervous and told him that the caller had asked

him not to marry Kirpal Kaur and threatened that in the event of his

failure to do so, he would be responsible for the consequences. PW13

Davinder Singh has also corroborated said version by narrating about

the threat received by him from the lady caller. The aforesaid

evidence of PW8 and PW13 did not find favour with the learned Trial

Court. Otherwise also, even if for the sake of argument, the aforesaid

evidence is taken to be true, then also it is not of much advantage to

the prosecution because the identity of said lady caller is not

established. Thus, in our considered view, the prosecution has not

been able to establish the motive for murder beyond reasonable doubt.

19. We may note that learned counsel for the appellant has

submitted that motive for crime in a case of circumstantial evidence is

a very important piece of evidence and the failure of the prosecution to

establish the motive by itself is sufficient to extend the benefit of doubt

to the appellant. In support of this contention, he has referred to the

judgment of the Supreme Court in the matter of Tanviben

Pankajkumar Divetia Vs. State of Gujarat, AIR 1997 SC 2193. In

our considered view, aforesaid judgment is based upon its own factual

matrix. The ratio of the judgment is that the motive is an important

piece of evidence in a case based upon the circumstantial evidence,

but the judgment does not say that if the prosecution fails to prove the

motive, that by itself can be taken as a ground for rejecting the

otherwise convincing evidence against the accused. Of course, since

the prosecution has not been able to prove motive in this case, a

greater care and caution is required while approaching the evidence

led by the prosecution.

20. The next circumstance sought to be proved by the prosecution is

the evidence relating to the last seen. The material witnesses

examined in that regard are PW2 Surender Singh and PW5 Prabh Kaur.

PW5 Prabh Kaur was running a Kiryana shop in her house No.C-36-A.

She has deposed that on 24.09.88 at around 2/2:30 pm, the appellant

threw a fifty paise coin from her first floor house and requested her to

give toffees to the deceased Shunty. Thereafter, the deceased came

to her shop and went upstairs towards the house of the appellant after

taking two toffees. Her aforesaid version finds corroboration from the

testimony of PW2 Surender Singh who was present at the shop of

Prabh Kaur at the relevant time and who has deposed to the same

effect. Both these witnesses were cross-examined at length, but their

testimony could not be shaken. Learned counsel for the appellant has

submitted that if the testimony of above two witnesses is to be

believed, then the deceased was alive till 2:30 pm, which fact is belied

by the post mortem report. Perusal of post mortem report Ex.PW10/A

reveals that it has fixed the time of death of the deceased between 22

to 24 hours prior to the time of commencement of the post mortem.

The post mortem, as per the report, commenced on 25.09.88 at 1:00

pm. Therefore, if calculated backwards, the time of death is fixed

between 1:00 to 3:00 pm on 24.09.88. Thus, we find no inconsistency

between the oral testimony of PW2 Surender Singh and PW5 Prabh

Kaur vis-à-vis the medical evidence. Learned counsel for the appellant

also submitted that even if the testimony of PW2 Surender Singh and

PW5 Prabh Kaur is taken to be true, then also it only proves that the

appellant got toffees to the deceased on 24.09.88 at around 2:30 pm,

but it does not establish that the deceased, after having taken toffees

had gone to the house of the appellant, particularly when the house of

the grandfather of the deceased was on the same floor of the building.

We find force in this contention of the appellant and are of the view

that as per the testimony of PW2 and PW5, the prosecution has only

been able to establish that the deceased Shunty was seen alive on

24.09.88 at around 2.00 to 2:30 pm and at that time the appellant was

present in her house and she threw an eight anna coin and asked PW5

Prabh Kaur to give toffees to Shunty.

21. The two most important factors forming basis of the conviction of

the appellant are her extra judicial confession and recovery of dead

body of the deceased from the loft in the kitchen of her house at her

instance. To prove these circumstances, the prosecution has examined

PW1 Jagrup Kaur (complainant), PW3 Jaspal Singh, an independent

witness and PW12 Kirpal Kaur.

22. PW1 Jagrup Kaur is categoric in her version that on 24.09.88,

somewhere around 4:30 to 5:00 pm they found that the deceased

Shunty was missing. Thereafter, she along with other family members,

including PW12 Kirpal Kaur and PW11 Surender Kaur, the mother of the

deceased, went in search of the deceased. The appellant also joined in

the search for some time and thereafter she left. When Shunty could

not be found, PW12 Kirpal Kaur expressed her suspicion against the

appellant. Therefore, they went to the house of the appellant and

knocked at her door. The appellant, when she opened the door, was

nervous and on inquiry about the deceased, she confessed that she

had committed a blunder and killed the deceased Shunty by

strangulation. PW1 Jagrup Kaur further deposed that thereafter the

appellant took them to the kitchen of her house and showed them the

dead body of the deceased lying on the "Parchatti" (loft) of the kitchen

by removing a wooden plank. Aforesaid version of PW1 Jagrup Kaur is

fully corroborated by PW3 Jaspal Singh and PW12 Kirpal Kaur, who

have deposed to the similar effect. All the three witnesses were cross-

examined at length by the learned defence counsel, but their

testimony could not be shaken so far as the above two circumstances

are concerned.

23. Learned counsel for the appellant has submitted that the above

referred testimony of PW1 Jagrup Kaur, PW3 Jaspal Singh and PW12

Kirpal Kaur is not worthy of credence, firstly, because there was no

reason for the aforesaid witnesses and Pritam Singh to suspect the

appellant and go to her house to find out the whereabouts of Shunty.

Secondly, he has contended that PW1 Jagrup Kaur and PW12 Kirpal

Kaur are interested witnesses. Therefore, also no reliance ought to

have been placed upon their testimony when the appellant had taken a

defence that Shunty (deceased) had been killed by Kirpal Kaur who

initially was the prime suspect along with one Santokh Singh and the

father of Kirpal Kaur in connivance with the police had shifted the

blame on the appellant.

24. We do not find merit in the above contention. Despite the fact

that the prosecution has not been able to establish motive on the part

of the appellant beyond doubt, we do not find anything unnatural in the

above referred witnesses and Pritam Singh having gone to the house of

the appellant, who was a next door neighbour, to find out about the

deceased Shunty. The real issue is whether or not the appellant made

an extra judicial confession in presence of the above witnesses and

showed them the dead body of the deceased lying in the "Parchatti" of

her kitchen. In this regard, we find the testimony of the witnesses

consistent, which remained unshaken despite of lengthy cross-

examination. There is no law that the testimony of an interested

witness, if otherwise reliable, cannot form basis for the conviction of

the accused. We may point out that PW3 Jaspal Singh is an

independent witness and he is neither related to the complainant party

nor to the appellant. He has fully corroborated the version of PW1

Jagrup Kaur and PW12 Kirpal Kaur regarding the extra judicial

confession made by the appellant and the recovery of dead body of the

deceased from the "Parchatti" of the kitchen in the house of the

appellant at her instance. There is nothing on record to suggest that

PW3 Jaspal Singh had any motive or reason to falsely implicate the

appellant in this case. Thus, we find no reason to disbelieve the

testimony of above three witnesses. Otherwise also, a suggestion was

put to PW12 Kirpal Kaur on behalf of the appellant that it was she who

had concealed the dead body of her nephew Shunty in the house of the

appellant as she was having free access to the house of the accused

and she also had the key to the house of the accused. This suggestion

supports the testimony of PW1 Jagrup Kaur, PW3 Jaspal Singh and

PW12 Kirpal Kaur that the dead body of the deceased was actually

found lying at the "Parchatti" of the kitchen in the house of the

appellant. Thus, we find no reason to disbelieve the evidence of the

above witnesses regarding the extra judicial confession made by the

appellant and the recovery of the dead body.

25. Learned counsel for the appellant has submitted that even if it is

assumed that the dead body of the deceased was recovered from the

loft of the kitchen of the appellant, then also, this by itself is not

sufficient to hold the appellant guilty. In support of this contention, he

has relied upon the judgment in the matter of State of U.P. Vs. Arun

Kumar Gupta, (2003) 2 SCC 202.

26. We find no substance in the contention. The judgment referred

to by learned counsel for the appellant, in our considered view, is

based upon the peculiar factual matrix of that case and is not

applicable to the facts of this case. In that case, case of the

prosecution was that the dead body was got recovered by the accused

during investigation and there was no explanation forthcoming on the

record as to why the Investigating Officer did not make any endeavour

to join independent witness from the locality to the recovery. In the

instant case, the facts are totally different. The dead body was got

recovered at the instance of the appellant from the loft of the kitchen

of her house prior to the investigating agency coming into motion.

Otherwise also, in the instant case there is an independent witness to

support the recovery of dead body at the instance of the appellant.

27. We may note at this juncture that from the testimony of PW2

Surender Singh and PW5 Prabh Kaur, it stands established that on the

fateful day at around 2:30 pm, the appellant asked PW5 Prabh Kaur to

give toffees worth eight anna to the deceased and thereafter the

deceased went upstairs towards the house of the appellant. This

implies that the appellant was present in her house at 2:30 pm. There

is nothing on record either in the form of suggestions given to the

witnesses or in the statement under Section 313 Cr.P.C. of the

appellant to show that the appellant had left her house during the

period, i.e., from 2:30 pm till the time when the appellant went with the

witnesses in search of the deceased. PW1 Jagrup Kaur, in response to

a question in her cross-examination, stated that when the appellant

accompanied them in search of the deceased, she had locked her

house. Aforesaid version has not been controverted by the appellant

by giving any suggestion to the contrary. Thus, it is apparent that

while leaving her house along with the witnesses in search of the

deceased, the appellant had locked the door of her house, which rules

out any possibility of someone else having entered her house and

planted the dead body of the deceased at the loft in the kitchen of the

house of the appellant.

28. It was contended on behalf of the appellant that PW12 Kirpal Kaur

was very thick with the appellant and she had a free access to her

residence and not only that, she was also having a key to the house,

therefore, a possibility cannot be ruled out that PW12 Kirpal Kaur might

have opened the door of the house of the appellant and planted the

dead body in the loft. From the testimony of PW1 Jagrup Kaur, PW3

Jaspal Singh and PW11 Surender Kaur, it is apparent that Kirpal Kaur

remained there during the search, before the appellant left the search

party. Therefore, there is no possibility that Kirpal Kaur may have

planted the dead body in the loft in the kitchen of the house of the

appellant.

29. The defence taken by the appellant in her statement under

Section 313 Cr.P.C. is that PW12 Kirpal Kaur is the real culprit. She

wanted to marry one Santokh Singh, electrician, with whom PW11

Surender Kaur also had an affair. Therefore, she was opposed to the

alliance of PW12 Kirpal Kaur with Santokh Singh. Because of said

reason, Kirpal Kaur was nursing a grudge against PW11 Surender Kaur

and, therefore, in order to settle score, she killed the deceased Shunty,

son of Surender Kaur. In the cross-examination of PW12 Kirpal Kaur, a

suggestion was given to her that on the relevant night Kirpal Kaur and

Sontokh Singh had been apprehended by the police and were made to

sit the whole night at the police station. But, later on with the

intervention of her father Pritam Singh, Kirpal Kaur and Santokh Singh

were released by the police and the appellant was falsely implicated in

the case.

30. The above defence of the appellant is belied by the record of this

case. From the record, it transpires that the police was intimated

about the murder of the deceased vide DD No.66B at 10:15 pm, on

receipt of which the Investigating Officer, SI Anil Kumar, PW28

immediately proceeded to the spot where he recorded the statement

Ex.PW1/A of Jagrup Kaur PW1 and said statement was despatched to

the police station on the night of 24.09.88 at 11:20 pm vide Rukka Ex.

PW28/A and on the basis of said Rukka, formal FIR Ex.PW22/A was

registered at 11:34 pm on 24.09.88. Perusal of the complainant

statement Ex.PW1/A and the FIR Ex.PW22/A reveals that by 11:20 pm

in the night, the complaint, categorically implicating the appellant for

murder of the deceased, had been recorded and by 11:34 pm even the

formal FIR detailing those facts was recorded. This circumstance rules

out any possibility of police having detained PW12 Kirpal Kaur and

Santokh Singh at the police station as suspects. Thus, in our view, the

defence set up by the appellant is not plausible.

31. The result of above discussion is that the prosecution has been

able to firmly establish that the appellant got recovered the dead body

of Shunty from the "Parchatti" of the kitchen in her house and that she

also made an extra judicial confession in the presence of PW1 Jagrup

Kaur, PW3 Jaspal Singh and PW12 Kirpal Kaur confessing that she had

killed the deceased by strangulation. The aforesaid extra judicial

confession further finds corroboration from the post mortem report

Ex.PW10/A wherein the Doctor concerned had opined that there were

ligature marks around the neck of the deceased and his death was due

to asphyxia consequent upon strangulation. The aforesaid

circumstances, in our considered view, form a complete chain so as to

conclusively point towards the guilt of the appellant and rules out any

possibility of her being innocent. Thus, we do not find any infirmity in

the impugned judgment of conviction and the order on sentence.

32. The appeal, being devoid of merits, is accordingly dismissed.

33. The appellant is on bail. Her bail bond and surety bond stand

cancelled. She be taken into custody and sent to Jail to undergo the

remaining sentence.

AJIT BHARIHOKE, J.

DECEMBER 22, 2009                         SANJAY KISHAN KAUL, J.
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