Palvinder Singh & Another vs State
2009 Latest Caselaw 3759 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment Reserved on: 11th September, 2009
                      Judgment Delivered on: 15th September, 2009

+                           CRL.A.597/2001

        PALVINDER SINGH & ANOTHER              ..... Appellants
                       Through: Ms.Nilofar Qureshi, Advocate.
                  versus

        STATE                                      ..... Respondent
                            Through: Mr. M.N.Dudeja, APP.

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?              Yes

     3. Whether the judgment should be reported in the
        Digest?                                             Yes

INDERMEET KAUR, J.

1. Palvinder Singh was married to Sarabjeet Kaur in June 1990.

They had three children aged six years, four years and the youngest

being an eight month old son. They were residing in a quarter

allotted to them at Gurudwara Badarpur. They were earlier living at

the quarter of Gurudwara Bangla Saheb. Palvinder was a Sewadar

by profession. Since the last 3-4 months Palvinder had been

assigned duty at Gurudwara Bangla Saheb. On 14.1.1998, Amarjeet

Singh PW-1 along with Surender Singh PW-5 had gone to Gurudwara

Bangla Saheb. They met Sewadar Manga who was employed in

Gurudwara Badarpur. He i.e. Manga told PW-1 that a quarrel had

taken place between Palvinder and Sarabjeet and his sister

Sarabjeet had probably been murdered by Palvinder Singh and his

younger brother Sarwan Singh who had come from Punjab;

Sarabjeet had not been seen after 9-10.1.1998 and since then all

the occupants of the house had disappeared. PW-1 along with PW-5

went to Gurudwara Badarpur where they found the house of his

sister locked. PW-1 informed his father Kishan Singh PW-2. On

15.1.1998 PW-2 and PW-5 went to the native village of Palvinder to

find out the whereabouts of Sarabjeet and Palvinder. He i.e. PW-2

met his son-in-law but he did not get any satisfactory reply about

the whereabouts of his daughter. PW-2 and PW-5 returned back to

Delhi. Complaint Ex.PW-1/A was lodged in PS Badarpur to this

effect.

2. Inspector Ved Prakash PW-17 was given charge of the

investigation of this case. He made his endorsement Ex.PW-17/A on

the aforestated complaint for the registration of an FIR under

Section 364 of the IPC. FIR Ex.PW-16/A was registered by HC

Rajinder Singh PW-16. On the same day i.e. on 17.1.1998 PW-17

along with SI Lakhi Ram PW-14, PW-2 and PW-5 proceeded to the

native village of the accused in Amritsar; a trap was laid and the

accused i.e. Palvinder Singh and his brother Sarwan Singh were

both apprehended. The disclosure statement of Palvinder Singh

Ex.PW-2/A was recorded and disclosure statement of Sarwan Singh

Ex.PW-5/A was also recorded. Their personal search memos Ex.PW-

14/A and Ex.PW-14/B were prepared. Accused Palvinder was found

present in Amritsar along with his two children but his third child i.e.

his youngest son aged eight months was found missing. Accused

feigned ignorance about the third child. The other two children were

also not able to inform the investigating agency about the

whereabouts of either their mother or their third sibling. The police

party along with accused returned back to Delhi.

3. On 19.1.1998 both the accused persons led the police party to

the place of occurrence i.e. to the room allotted to Palvinder Singh

at Gurudwara Badarpur where he pointed out quarter No.4 i.e. the

matrimonial home of Palvinder and Sarabjeet. Room was locked;

the cot lying in the room where the Sarabjeet had been killed was

taken into possession vide memo Ex.PW-14/H. The 'Granthi' of the

Gurudwara Niranjan Singh PW-6 met them there; as per his version

he had last seen the accused persons and deceased together.

Statements of Tikka Singh PW-4 and Boota Singh PW-7 were also

recorded; they were neighbours living in the adjoining quarters at

Gurudwara Badarpur. Jasvinder Singh alias Manga has been

examined as PW-8; he, however, did not support the version of the

prosecution. On the same day i.e. on 19.1.1998, the accused

persons led the police party to a well where they had thrown the

dead body of Sarabjeet near BTS Colony at Mathura Road; it was a

dry well; pointing out memo of the said place is Ex.PW-1/B. The

dead body was pulled out from the well by Sh.Ram Krishan PW-9

and was taken into possession vide memo Ex.PW-1/C. It was

found wrapped in a bed sheet and tied with a plastic rope. Dead

body was identified by PW-1 as that of his sister. Inquest papers

Ex.PW-17/B were prepared. The post-mortem on the dead body was

conducted by Dr.Praveen Kumar. The report Ex.PW-11/A has been

proved by Dr.Millo Tabin PW-11. Cause of death was asphyxia due

to strangulation by ligature. Time since death was reported to be

nine days i.e. relating back to 10.1.1998.

4. On 20.1.1998, accused persons led the investigating team to

the place where they had abandoned the third child of Palvinder

Singh i.e. his eight month old son. This was a place opposite a

temple near Ganga Vihar on the Ring Road; pointing out memo is

Ex.PW-14/J. In this context on 11.1.1998 a PCR call had been

received in the area of police station Sriniwaspuri of police post

Sunlight Colony by lady Const.Geeta PW-15 that a child had been

found abandoned near village Kilokari near Hind Motors. This

information had been conveyed by her to the District Control Room

and was passed on to the police post at Sunlight Colony. DD no.10

Ex.PW-13/A was recorded by HC Satpal Singh PW-13 who had gone

for the investigation thereof; a male child was found abandoned

there; his identity could not be traced. The child was left in the care

of Phoolo Devi PW-3. Thereafter the Delhi Child Welfare Association

was contacted and the child was transferred to the care of

Ms.Chritia Thomas PW-12 who was working as a Supervisor in the

Delhi Counsel Child Welfare Department. Testimony of PW-12 is to

the effect that the child had thereafter been identified as the son of

Sarabjeet Kaur and his custody had been handed over to his

grandfather Sh.Arjun Singh vide memo Ex.PW-12/A.

5. The Trial Judge had vide the impugned judgment convicted

both the accused persons for the offence punishable under Section

302/34 of the IPC as also for the offence punishable under Section

201 of the IPC i.e. for having committed the murder of deceased

Sarabjeet and thereafter for having concealed the evidence of the

crime by throwing her dead body in a well. Accused Palvinder had

been acquitted for the offence under Section 498-A of the IPC.

6. The Trial Judge had relied upon the testimony of PW-6 to hold

that the accused persons i.e. Palvinder Singh and his brother

Sarwan Singh were last seen together in the matrimonial home of

Palvinder and Sarabjeet. The motive for the crime was the

suspicion of Palvinder that his wife was having an illicit relationship

and this had been spelt out in the version of PW-5. Immediately,

after the crime which was probablized as the intervening night of

9/10.1.1998 accused persons had left Delhi for their village at

Amritsar; on 9.1.1998 when the accused persons were

apprehended, they had no satisfactory explanation about the

absence of Sarabjeet or of the third child of Palvinder. The Trial

Judge had also placed reliance on the version of PW-10 to whom

Palvinder had sold his gas stove apparently for the reason that he

was going back to his native village after closing his matrimonial

home for good; the chain of circumstances had further been woven

by the testimony of PW-4 who had deposed that Palvinder had

borrowed his cycle on 9.1.1998 and this was to dispose of the dead

body of his wife. The most lethal circumstance held against the

accused was the recovery of the dead body of Sarabjeet from the

well pursuant to the disclosure statement of the accused persons.

All these circumstances had been relied upon by the Trial Court to

sustain the conviction of the accused.

7. On behalf of the accused it has been argued that the version

of PW-6 to establish the circumstance of last seen is unreliable as

an appreciation of his version on oath in court shows that he is not

sure of the facts; he has not deposed about the date when he had

seen the accused persons i.e. Palvinder and Sarwan in the company

of Sarabjeet and drawing of inferences from a general version is not

what is contemplated by the rules of criminal jurisprudence; such a

vague and general statement cannot form the basis of a conviction

in a murder trial. Manga who had first set this investigation into

motion has not been examined. It is not clear as to how and in what

circumstances Manga had by chance met PW-1 and disclosed his

version that he knew about the murder of Sarabjeet i.e. the sister of

PW-1. The recovery of the dead body on 19.1.1998 does not inspire

confidence as there are inherent discrepancies in the versions of

the recovery witnesses and although as per the case of the

prosecution recovery of the dead body had been effected on

19.1.1998 in the morning hours yet PW-14 in his cross-examination

has stated that it was dusk and late evening when the recovery had

been effected; recovery of the dead body is also belied. Prosecution

version being clearly suspect, benefit of doubt has accrued in favour

of the accused persons and they are entitled to an acquittal. It is

submitted that even otherwise the role of Sarwan Kumar has not

been spelt out and if the version of Pw-6 is discarded there is

nothing with the prosecution to nail him; attention has been drawn

to the version of PW-10 who has stated that Palvinder Singh alone

had come to sell the gas stove to him and he had not been

accompanied by his brother Sarwan Singh. Role of the Sarwan

Singh has been demolished by the witnesses of the prosecution

itself.

8. We have perused the record and appreciated the

submissions.

9. This is a case of circumstantial evidence; all the links in the

chain have to be so co-jointly interwoven that there is no gap and

the ultimate conclusion must unerringly point towards the guilt of

the accused; the hypothesis of their innocence has to be excluded.

The circumstances sought to be established by the prosecution

have to be tested on this touch stone.

10. Palvinder and Sarabjeet were admittedly living at the quarter

allotted to them in Gurudwara Badarpur. Palvinder was a sewadar

in the said gurudwara. Tika Singh PW-4 had deposed that he was

working as a Sewadar in the Gururdwara where Palvinder was also

working and they were both living in the staff quarter of the said

Gurudwara. On 9.1.1998 at about 8 PM Palvinder had come to his

quarter to borrow his cycle. PW-4 gave his cycle to Palvinder who

returned it back on the following morning at about 11 AM. In his

cross-examination he had stated that Palvinder used to borrow his

cycle occasionally.

11. Niranjan Singh PW-6 was working as a 'Granthi' in Gurudwara

Badarpur. He has deposed that Palvinder was working as Sewadar

in the said Gurudwara and was living with his wife and children.

This witness has been examined by the prosecution to establish the

circumstance of the accused persons and the deceased having been

last seen together. PW-6 has deposed that prior to the death of the

wife of accused Palvinder, his brother Sarwan Singh also came and

started living with Palvinder Singh. Relations of Palvinder and his

wife were strained and they used to quarrel with one another. He

has deposed that Palvider and Sarwan Singh had left the Gurudwara

premises on 15.1.1998; two to three days prior to 15.1.1998 wife of

Palvinder was not seen in the room. In his cross-examination, he

has stated that he was working in the Gurudwara since 14.7.1996;

he was not living in the Gurudwara; but he used to come for his

duty at 7 AM and return back at night.

12. This is the sum total of the testimony of PW-6 which has been

relied upon by the prosecution to hold that both the accused

persons i.e. Palvinder Singh and Sarwan Singh were last seen in the

company of Sarabjeet Kaur. We have scrutinized this testimony. In

our view it is vague, general and lacking in all and every particular;

dates, timings and place have not been mentioned which are crucial

facts to establish the circumstance of last seen. PW-6 has deposed

that two to three days prior to 15.1.1998 i.e. around 12/13.1.1998

Sarabjeet had not been seen in her quarter at the Gurudwara; death

as per the prosecution had occurred on the intervening night of

9/10.1.1998 and this has been fortified by the post-mortem report.

Deposition of PW-6 does not in any manner establish that Sarwan

Singh and Palvinder had been last seen together with Sarabjeet

Kaur either on 10.1.998 or immediately prior thereto; in fact there is

no such express statement and neither does the statement so state

even by implication; there is no mention of the presence of

Sarabjeet even before 12-13.1.1998. Admittedly, Sarwan Singh was

a resident of Amritsar and he had only come to visit his brother

Palvinder in Delhi; when he came to Delhi and when he left for Delhi

has not been spelt out in this version of PW-6; there is no other

witness with the prosecution to establish that Sarwan Singh had

come to live in the house of Palvinder just before the date of the

incident i.e. around 9-10.1.1998. Prosecution in our view has not

been able to establish that Sarwan Singh was immediately prior to

the incident seen in the company of his brother Palvinder and his

Bhabhi Sarabjeet. Version of PW-6 is nowhere to the said effect.

13. Buta Singh PW-7 was also an employee of Gurudwara at

Badarpur. He has deposed that he was on duty earlier in

Gurudwara Bangla Saheb and thereafter he started living in

Gurudwara Badarpur where Palvinder was also employed as a

Sewadar.

14. The evidence of the aforestated witnesses has established

that Palvinder and his wife Sarabjeet were living in the quarters

allotted to them at Gurudwara Badarpur. They were living there

with their three children. This was the matrimonial home of

Sarabjeet Kaur. Sarwan Singh, brother of Palvinder had come to

Delhi on a visit but when he actually came and when he left is not

clear. Version of PW-6 has nowhere been able to establish that

Sarwan Singh was last seen in the company of his deceased Bhabhi

just on or before the date of the incident i.e. 9/10.1.1998. There is

not a whisper about this; PW-6 was also not residing at Gurudwara

Badarpur.

15. The family members of Sarabjeet Kaur have been examined

as PW-1, PW-2 and PW-5. Amarjeet Singh PW-1 had deposed that

on 14.1.1998 he learnt from Manga Sewadar that there had been a

quarrel between his sister and his brother-in-law and his sister had

probably been killed. He had received this information while he had

gone to offer his prayer at Gurudwara Badarpur. He had been

accompanied by his brother-in-law Surender Singh PW-5. PW-5 has

deposed that Sarabjeet Kaur was his elder sister-in-law and

relations between Sarabjeet and Palvinder were strained as

Palvinder used to suspect his wife for infidelity. Kishan Singh PW-2

is the father of the deceased and he has deposed on the same lines

as his son; he had been informed by his son PW-1 that his daughter

was missing and he along with PW-5 had gone to Amritsar to find

out her whereabouts.

16. On 19.1.1998 both the accused persons had been arrested

from Mehta Chowk, Amritsar. After their arrest they had been

brought to Delhi. Pursuant to their disclosure statements they had

vide memo Ex.PW-1/B pointed out a well at BTS Colony on Mathura

Road where they had thrown the dead body of Sarabjeet. This

pointing out memo has been attested by PW-1 and PW-14 and both

the witnesses have corroborated one another on this aspect. The

dead body had been retrieved by Ram Singh PW-9, who on oath

has deposed that on 19.1.1998 he had joined investigation of this

case at the asking of the police. He had been taken to a well where

with the help of ropes and hooks they retrieved a dead body from

the well which was lying in a sack. It was of a female. The body

was taken into possession vide memo Ex.PW-1/C. In his cross-

examination, he has stated that it was 12 noon when they reached

the spot and they remained there up to 1.30 PM. Recovery memo

of the dead body has been perused which has duly been attested by

PW-9.

17. PW-14 SI Lakhi Ram was also a witness to this recovery. He

has in his cross-examination deposed that he had joined the

recovery proceedings. The accused persons had pointed out the

place where they had thrown the dead body. In his cross-

examination he has stated that he cannot give the exact time when

the dead body was pulled out from the well but it was dusk time and

darkness had set in. This contradiction as has been pointed out by

the learned defence counsel in our view is a minor discrepancy.

The recovery of the dead body had been effected in January 1998.

The witness had come into the witness-box almost after three years

of the incident; persons are not expected to have photogenic and

photographic memory of exact timings and place; it is not as if a

video tape is being replayed on the mental screen. This

discrepancy as pointed out is too minor and has to be ignored. PW-

1 Amarjeet Singh the third witness to this recovery has been

consistent in his version. The recovery of the dead body stands

proved.

18. Testimony of PW-10 Jagdish is also relevant. He was a witness

living in the neighbourhood of accused Palvinder and to whom

Palvinder had sold his gas stove. On oath PW-10 had stated that he

cannot exactly give the date but it was 8th or 9th of January; it was

winter season when accused Palvinder had come to sell his stove to

him which he has sold for Rs.450/-. PW-10 purchased this stove and

he went to the house of Palvinder. He saw that his family was not

there. PW-10 had categorically stated that he had not told the

police that Palvinder had been accompanied by his brother Sarwan

when he came to sell his stove to him. Version of this witness

establishes that on 8th or 9th January, 1998 Palvinder had gone alone

to Pw-10 to sell his stove to him; PW-10 had accompanied Palvinder

to his house where he did not find anyone present there much less

Sarwan Singh.

19. Manga alias Joginder has been examined as PW-8; although

he did not support the prosecution version; but this does not in any

manner dent the version of the prosecution; PW-8 had only given

the first lead to this case; he was an employee of Gurudwara Bangla

Saheb where in the natural course he met PW-1 who had gone to

offer prayers at the Gurudwara and was known to him since the last

5-6 months; this is the categorical testimony of PW-1.

20. We are unable to understand what were the circumstances

which had weighed in the mind of the Trial Judge to hold co-accused

Sarwan Singh guilty? Sarwan Singh was the brother of Palvinder

and admittedly a resident of Amritsar. Testimony of PW-6 as

discussed supra has nowhere in any form or manner shown that

Sarwan Singh was last seen in the company of his deceased Bhabhi

Sarabjeet Kaur. On the other hand, PW-10 a witness of the

prosecution itself has come into the witness box and deposed that

on 8/9.1.1998 Palvinder was alone in his house; he had come to sell

his gas stove and at that time he was not accompanied by his

brother Sarwan Singh; he was alone.

21. In this scenario the role of Sarwan Singh has not surfaced.

Benefit of doubt has accrued in his favour and in our view he is

entitled to an acquittal.

22. Prosecution in our view has been able to establish that

accused Palvinder had committed the murder of his wife. He had

strained relations with her. Both of them were admittedly living in

quarter No.4 of the quarters of Gurudwara Badarpur; the

matrimonial home of Sarabjeet. The married couple had three

children. On 14.1.1998, it was first learnt that the house of

Palvinder and Sarabjeet Kaur is locked; their whereabouts were not

known. On 19.1.1998 Palvinder was arrested from Amritsar where

he was found in the company of his first two elder children and his

third child and wife were missing for which he could not give any

satisfactory reason; in his statement under Section 313 Cr. P.C. he

had stated that his wife had gone to her parents house; the defence

adduced by him through the testimony of Kashmir Singh DW-1 has

recited that Palvinder had gone with his wife to Punjab to celebrate

Lohri of his youngest son; this is a patently false and incorrect

version for the reason that admittedly his wife and youngest son

had not accompanied him to Amritsar for this celebration. On

11.1.1998 this eight month old unfortunate child was found

abandoned at the Ring Road opposite village Kilokari. It is strange

and almost impossible to believe that the father would have gone

with his two children minus his wife and youngest child to celebrate

Lohri festival of the third child who had not accompanied him and

was thereafter found lying abandoned; mother of the child was also

reported missing. Who was to explain where the mother and the

child were? Obviously the father in whose custody and care the

mother and the child were. Section 106 of the Evidence Act

specifically postulates that where any fact is specially within the

knowledge of any person the burden of proving is upon him. It was

for Palvinder to explain and answer to where his missing wife and

child were; not only he has given a dissatisfactory explanation but a

false and misleading one.

23. In judgment reported as Babu S/o Raveendran vs. Babu S/o

Bahuleyan & Anr. (2003) 7 SCC 37, the solitary circumstance was of

the accused and the deceased being seen alive in the company of

each other followed by the dead body of the deceased being

recovered. The relationship of the deceased and the accused was

of husband and wife. The place of death was their matrimonial

home. The place where the dead body was found was the same

matrimonial home. There was no evidence of an intruder, it was

held that in such a situation, the circumstance leading to the death

of the deceased stand shifted, to be explained by the accused, for it

is only he who is to be expected to know the manner and the

circumstances under which his wife has died.

24. In the judgment reported as Mohibur Rehman & Anr. vs.

State of Assam (2002) 6 SCC 715, the two accused persons had last

seen in the company of PW-6; the body of the deceased had been

found at a distance of 30 km to 40 km from the bus stand where all

were seen together; dead body had been recovered after 13 days;

the Supreme Court while acquitting one accused and convicting the

other had held qua the convicted accused that the strongly

suspicious evidence of being last seen in the company of the

deceased could not be equated with proof but the strongly

suspicious circumstance of being last seen alive with the deceased

coupled with an attempt to mislead the relations of the deceased

and his knowledge of the place where the dead body of the

deceased was found were sufficient circumstances where from his

guilt could be inferred.

25. In view of the aforestated evidence, it is clear that the

prosecution has been able to establish that accused Palvinder had

committed the murder of his deceased wife and concealed the

evidence of the crime by throwing her dead body in a well.

However, benefit of doubt has accrued in favour of his co-accused

brother Sarwan Singh who is entitled to an acquittal. Appeal is

partly allowed. Accused Sarwan Singh is acquitted of the charges

leveled against him. Bail bond and surety bond of accused Sarwan

Singh are canceled. Conviction of Palvinder Singh is maintained. His

appeal is dismissed. He is on bail. His bail bond and surety bond

are cancelled. He shall surrender forthwith to suffer the remaining

sentence.

(INDERMEET KAUR) JUDGE

(PRADEEP NANDRAJOG) JUDGE

15th September, 2009 rb