Delhi High Court
Kiran Mehlawat vs State on 26 February, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : November 05, 2009
Judgment Delivered on: February 26, 2010
+ CRL.APPEAL NO.515/2001
KIRAN MEHLAWAT ..... Appellant
Through: Mr.R.M.Tufail, Advocate and
Mr.Vishal Sehijpal, Advocate.
versus
STATE ..... Respondent
Through: Ms.Richa Kapoor, A.P.P.
+ CRL.APPEAL NO.533/2001
SURINDER SINGH ..... Appellant
Through: Mr.K.B.Andley, Senior Advocate
with Mr.Sanjay Suri, Advocate and
Mr.M.L.Yadav, Advocate.
versus
STATE ..... Respondent
Through: Ms.Richa Kapoor, A.P.P.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
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
PRADEEP NANDRAJOG, J.
1. Appellants Kiran Mehlawat and Surinder Singh and co-
accused Jasvinder Singh faced trial for the charge of having
murdered Pratap Singh (herein after referred to as the
"Deceased"). Additionally, appellant Kiran faced trial for the
charge of having given false information to the police.
2. Vide impugned judgment and order dated 18.05.2001,
appellants have been held guilty of committing the offence
punishable under Section 302/34 IPC, for which offence they
have been sentenced to undergo imprisonment for life and pay
fine in sum of Rs.10,000/-; in default to undergo rigorous
imprisonment for a period of two months. Additionally,
appellant Kiran has also been held guilty of committing the
offence punishable under Section 203 IPC, for which offence
she has been sentenced to undergo rigorous imprisonment for
a period of one year and pay fine in sum of Rs.500/-; in default
to undergo rigorous imprisonment for a period of ten days. Co-
accused Jasvinder has been acquitted by the learned Trial
Judge.
3. Case of the prosecution was that in the intervening night
of 28/29.07.1996 Const.Varinder PW-16 and Const.Babu Singh
PW-18, were patrolling in the area around Deepali Chowk,
Rohini when they saw a motorcycle bearing registration
No.DBX-4874 (of Yamaha make) lying abandoned on a service
lane near Deepali Chowk. They opened the dickey of the
motorcycle where they found the registration certificate of the
motorcycle from which they gathered knowledge of the
address of house bearing Municipal No.134, Sainik Vihar, New
Delhi. They went to the house in question where they met
Kiran, who informed them that the motorcycle belonged to her
husband and that the same has been stolen. The police
officers told her to check whether anything else was stolen and
followed her as she went up to the first floor and saw the dead
body of a male having an electric cord around the neck. Kiran
told them that the dead body was of her husband.
4. Const.Varinder PW-16, sent the aforesaid information
through wireless to police post Shakti Vihar where DD No.23A
Ex.PW-7/A was recorded; noting the aforesaid information.
5. On receipt of the aforesaid information, Inspector Naval
Kishore PW-26, ASI Ram Swaroop PW-7 and HC Jagir Singh PW-
14 proceeded to the house in question. Inspector Naval
Kishore PW-26, recorded the statement Ex.PW-6/A of accused
Kiran and made an endorsement Ex.PW-26/A thereon, and at
around 01.00 AM handed over the same to HC Jagir Singh PW-
14, for registration of an FIR. HC Jagir Singh took the
endorsement Ex.PW-26/A to the police station and handed
over the same to ASI Dharampal PW-14, who recorded the FIR
No.428/96 Ex.PW-6/A.
6. Relevant would it be to note that the statement Ex.PW-
6/A of accused Kiran reads as under:-
"I reside at the aforesaid address with my husband,
mother-in-law and children. My husband Shri Pratap
Singh had retired as Major from the army. I am his
second wife and that his first wife resides in
England. My marriage was solemnized 10 years
back. On 26.07.1996 at around 07.00 P.M. my
husband who was carrying a sum of Rs.3,50,000/-
with him had gone to village Mandora for the
purposes of purchasing a piece of land. Yesterday at
around 4.00 P.M. he came back to the house and
after drinking a glass of water, he went to the first
floor of the house. Some dirty clothes and cash was
lying in the bag of my husband. I did not count the
cash which was lying in the bag of my husband.
After taking out the clothes from the bag and
keeping them in a corner of the room I kept the bag
containing cash on the bed in the same room. My
husband went for taking a bath and I went to the
other room. After taking bath, my husband switched
on the air-conditioner, closed the room and started
resting. I came downstairs and got busy in
household work. At about 7.00 P.M. I closed the
windows and doors of the house. At about 8.00-8.15
P.M. I took my children outside to buy them a cold
drink and came back in the house after sometime.
At about 9-9.15 P.M. I closed the main gate of my
house as also other windows and doors of the
house. Two gates which provide access to the first
floor of the house were closed. At about 01.00 A.M.
a police officer came to my house and informed me
that our motorcycle has been found and that
address of our house has been found in a
motorcycle. The police officer further asked me to
check if any other article has been stolen from the
house upon which I went upstairs from the door on
the front side because the inner gate was closed. I
came upstairs and saw that there was dark inside
the room. I switched on the light in the room and
saw that my husband has been strangulated with a
wire tied around his neck and that blood was oozing
out from his ears. When I tried to move my husband
I saw that he was lifeless and that he had died. The
bag containing cash and some other things were
missing from the room. Someone had committed
robbery and killed my husband. An action be taken
against him. Statement heard and admitted as
correct." (Emphasis Supplied)
7. Thereafter Inspector Naval Kishore PW-26, proceeded to
inspect the house. He found a gold chain on the person of the
deceased and some foreign currency notes and a gold bangle
in an almirah in the room where the deceased was found dead
and a torn slip of paper Ex.PW-7/D bearing the stamp of UCO
Bank, Rohtak on the floor of the said room. Inspector Naval
Kishore PW-26, seized the aforesaid gold chain and torn slip of
paper Ex.PW-7/D vide memos Ex.PW-26/H and Ex.PW-7/C
respectively and handed over the foreign currency notes and
gold bangle found in the almirah to accused Kiran in the
presence of Rajinder Sehrawat PW-1, the husband of the sister
of the deceased.
8. On 29.07.1996 at about 01.15 P.M. the body of the
deceased was sent to Lok Nayak Jai Prakash Hospital where
Dr.L.T.Ramani PW-2, conducted the post-mortem of the
deceased and prepared the report Ex.PW-2/A which records
that an electric cord was found tied around the neck of the
deceased; that one lacerated wound and some other injuries
were found on the person of the deceased; that ligature marks
were found on the neck of the deceased which were caused
with the cord found tied around his neck and that the same
were sufficient to cause death of the deceased in ordinary
course of nature; that the cause of death of the deceased was
asphyxia resulting from strangulation of neck; that other
injuries found on the person of the deceased were caused by a
blunt weapon and the death of the deceased was caused 15
hours prior to the conduct of post-mortem.
9. After the post-mortem, the doctor handed over the
clothes and blood sample of the deceased on a gauze to
Const.Joginder PW-19, who handed over the same to Inspector
Naval Kishore, who seized the same vide memo Ex.PW-19/A.
10. On 29.07.1996 SI Shanker Banerjee PW-5, recorded the
statement Ex.PW-5/A of Dropadi, a maid servant employed at
the house of the deceased, under Section 161 Cr.P.C. wherein
she stated that accused Kiran was having illicit relations with
accused Jasvinder; that accused Kiran frequently used to meet
accused Surinder and Jasvinder at her residence and that
accused Kiran met accused Surinder at her residence on the
day of the murder of the deceased.
11. Thereafter the police recorded the statement Ex.PW-25/X
of Vijay Pal, the brother of accused Kiran, under Section 161
Cr.P.C. wherein he stated that accused Kiran was having illicit
relations with accused Jasvinder and that accused Jasvinder
had told him that accused Surinder had murdered the
deceased at the instance of accused Kiran.
12. Since the statements Ex.PW-5/A and Ex.PW-25/X of
Dropadi and Vijay Pal respectively were suggestive of the
involvement of accused Surinder and Jasvinder in the murder
of the deceased, the police set out to apprehend them.
13. On 30.07.1996 a police team consisting of SI Shanker
Banerjee PW-5, SI Rajbala PW-11 and SI Yashpal PW-24,
arrested accused Surinder from village Thuru. On being
interrogated by SI Shanker Banerjee PW-5, in the presence of
SI Rajbala PW-11 and SI Yashpal PW-24, accused Surinder
made a disclosure statement Ex.PW-5/A wherein he stated that
he had murdered the deceased at the instance of accused
Kiran and that he can get recovered the sum of Rs.70,000/-
given to him by accused Kiran for murdering the deceased.
Pursuant thereto, accused Surinder led the aforesaid police
officers to his residence and got recovered seven packets
containing hundred notes of Rs.100/- each i.e. a sum of
Rs.70,000/- lying hidden under heap of cattle feed. It may be
noted here that a slip issued by UCO Bank Rohtak was found
affixed on one of the packets. SI Shanker Banerjee PW-5,
seized the aforesaid seven packets recovered at the instance
of accused Surinder vide memo Ex.PW-5/D.
14. Thereafter accused Surinder made another disclosure
statement Ex.PW-5/F in the presence of Inspector Naval
Kishore PW-26 and SI Shanker Banerjee PW-5, wherein he
stated that he can get recovered the shirt worn by him at the
time of the murder of the deceased and the keys of the
motorcycle of the deceased used by him for fleeing from the
house of the deceased after committing his murder. Pursuant
thereto, accused Surinder led the aforesaid police officers to a
forest and got recovered a shirt and three keys lying hidden
under bushes. Inspector Naval Kishore PW-26, seized the
aforesaid shirt and keys recovered at the instance of accused
Surinder vide memo Ex.PW-5/G.
15. On the same day i.e. 31.07.1996 a police team consisting
of Inspector Naval Kishore PW-26 and ASI Veena PW-10,
arrested accused Kiran. On being interrogated by Inspector
Naval Kishore PW-26, in the presence of ASI Veena PW-10,
accused Kiran made a disclosure statement Ex.PW-10/A
wherein she stated that accused Surinder had murdered the
deceased at her instance and that she can get recovered an
iron rod used to murder the deceased. Pursuant thereto,
accused Kiran led the aforesaid police officers to a room in her
house and got recovered an iron rod lying hidden therein.
Inspector Naval Kishore PW-26, seized the aforesaid iron rod
recovered at the instance of accused Kiran vide memo Ex.PW-
10/B.
16. On 01.08.1996 Inspector Hoshiar Singh PW-22, arrested
accused Jasvinder from the residence of the deceased.
Accused Jasvinder was interrogated and his confessional
statement was recorded. We note that no recovery was
effected nor was a fact discovered by the police pursuant to
the said statement made by accused Jasvinder.
17. On 09.08.1996 the iron rod recovered at the instance of
accused Kiran was sent to Dr.L.T.Ramani PW-2, for his opinion
regarding weapon of offence. Vide his opinion Ex.PW-2/B, the
doctor opined that the lacerated wound and other injuries
found on the person of the deceased could have been caused
by the said iron rod.
18. The seized materials; namely the clothes and blood
sample of the deceased, the iron rod recovered at the instance
of accused Kiran and the shirt recovered at the instance of
accused Surinder were sent to Forensic Science Laboratory for
a serological test. Vide FSL reports Ex.PW-20/A and Ex.PW-20/B
it was opined that the blood group of the deceased was A and
that human blood of group A was detected on the shirt
recovered at the instance of accused Surinder.
19. Needless to state, accused Kiran, Surinder and Jasvinder
were sent for trial. Charges were framed against them for
having committed the offence punishable under Section
302/34 IPC. Additionally, a charge was framed against accused
Kiran for having committed the offence punishable under
Section 201 IPC.
20. At the trial, the prosecution examined 26 witnesses. (It
may be noted here that the prosecution did not examine
Dropadi as she could not be traced)
21. Rajinder Sehrawat PW-1, the husband of the sister of the
deceased, deposed that on receiving the information about the
murder of the deceased he went to the house of the deceased.
The police handed over the foreign currency notes and gold
ring, found in an almirah lying in the room where the deceased
was found dead, as also the gold chain found on the neck of
the body of the deceased to accused Kiran in his presence.
22. Prahlad Singh PW-4, the nephew of the deceased, and
ASI Ram Swaroop PW-7, deposed that on receiving the
information about the murder of the deceased they went to
the house of the deceased where amongst other persons the
mother of the deceased was also present.
23. Const.Varinder PW-16, deposed that in the intervening
night of 28/29.07.1996 he and Const.Babu Singh PW-18, were
patrolling in the area around Deepali Chowk, Rohini when they
saw that a motorcycle bearing No.DBX-4874 of Yamaha make
was lying abandoned on a service lane near Deepali Chowk.
On not finding the key of the said motorcycle, he and
Const.Babu Singh opened the dickey of the same wherein they
found the registration certificate of the said motorcycle. The
said registration certificate recorded that the owner of the
motorcycle in question is a resident of house bearing Municipal
No.134, Sainik Vihar, New Delhi. Pursuant thereto, he and
Const.Babu Singh proceeded to the house in question where
they met accused Kiran who informed them that the
motorcycle found by them belonged to her husband i.e. the
deceased and that the same has been stolen. There was no
electricity in the house. When he and Const.Babu Singh
enquired from accused Kiran whether any other article has
been stolen from her house she signalled towards a room
where they saw that the deceased was lying dead. It may be
noted here that the testimony of the said witness was not
controverted on behalf of accused Kiran.
24. Const.Babu Singh PW-18, deposed that in the intervening
night of 28/29.07.1996 he and Const.Varinder, were patrolling
in the area around Deepali Chowk, Rohini when they saw that
a motorcycle bearing No.DBX-4874 of Yamaha make was lying
abandoned on a service lane near Deepali Chowk. On not
finding the key of the said motorcycle, he and Const.Varinder
opened the dickey of the same wherein they found the
registration certificate of the said motorcycle. The said
registration certificate recorded that the owner of the
motorcycle in question is a resident of house bearing Municipal
No.134, Sainik Vihar, New Delhi. Pursuant thereto, he and
Const.Varinder proceeded to the house in question where they
were met by accused Kiran who informed them that the
motorcycle found by them belongs to her husband i.e. the
deceased and that the same has been stolen. When he and
Const.Varinder made enquiries about her husband, accused
Kiran told them that her husband is sleeping upstairs. When he
and Const.Varinder expressed a desire to meet her husband
accused Kiran told them that there is no electricity in the
house and thus she cannot go upstairs to call her husband
upon which he and Const.Varinder along with accused Kiran
went upstairs they saw that the deceased was lying dead in a
room. It may be noted here that the testimony of the said
witness was not controverted on behalf of accused Kiran.
25. Vijay Pal PW-25, turned hostile and denied having made
statement Ex.PW-25/X to the police.
26. Inspector Naval Kishore PW-26, deposed that the
investigation of the present case was entrusted to him. On
receiving the information about the murder of the deceased he
went to the house of the deceased where he saw that the
deceased was lying dead in a room and that a gold chain was
present on the neck of the body of the deceased. He found
some foreign currency notes and a gold bangle in an almirah
lying in the room where the deceased was found dead. On
being cross-examined about the whereabouts of the mother of
the deceased around the time of the incident, the witness
stated that (Quote): 'It is correct that mother of deceased her
children were also staying in same house. Deceased of mother
refused to make statement child of deceased was too small to
say anything. Mother in law of Kiran had orally stated that
accused Bablu, Surinder and Vijay etc had been visiting their
house. I had not recorded any statement in the case diary
about this fact.'
27. In her statement under Section 313 Cr.P.C. save and
except admitting the factum of making of statement Ex.PW-
6/A accused Kiran denied everything. In their respective
statements under Section 313 Cr.P.C. accused Surinder and
Jasvinder pleaded innocence and denied everything.
28. The accused did not lead any evidence in defence.
29. As already noted herein above, the learned Trial Judge
has convicted accused Kiran and Surinder. The reasons which
led the learned Trial Judge to convict accused Kiran are that :-
(i) Conduct of accused Kiran was suspicious inasmuch as she
did not inform the police about the murder of the deceased
and that she had deliberately disconnected the electricity of
her house; (ii) Accused Kiran made a false claim to the police
that a robbery has been committed in her house and (iii) The
injuries found on the person of the deceased were possible to
have been caused by the iron rod recovered at the instance of
accused Kiran. The reasons which led the learned Trial Judge
to convict accused Surinder are that :- (i) The fact that a slip
containing stamp of UCO Bank Rohtak was recovered from the
house of the deceased and accused Kiran and that a slip
issued by same bank was found affixed on one of the packets
of notes recovered at the instance of accused Surinder
suggests that the packets of notes recovered at the instance
of accused Surinder were given to him by accused Kiran to
murder the deceased; (ii) Blood of same group as that of the
deceased was found on the shirt recovered at the instance of
accused Surinder and (iii) The fact that one of the keys
recovered at the instance of accused Surinder was that of the
motorcycle belonging to the household of the deceased
suggests that the said motorcycle was used by accused
Surinder for running away from the house of the deceased
after committing the murder of the deceased. However,
learned Trial Judge acquitted accused Jasvinder on the ground
that the prosecution has not led even a single piece of
evidence which could connect accused Jasvinder with the
crime of the murder of the deceased.
CASE AGAINST ACCUSED KIRAN
30. During the hearing of the above captioned appeals, two
arguments were advanced by the learned counsel for accused
Kiran. The first argument advanced was that the mother of the
deceased was a material witness for the reason she could
have thrown light on the events which happened around the
time of the murder of the deceased as the testimony of
Prahlad Singh PW-4, ASI Ram Swaroop PW-7 and Inspector
Naval Kishore PW-26, establishes that the mother of the
deceased used to reside in the house where the deceased was
found murdered and that she was present in the said house
around the time of the murder of the deceased. Counsel urged
that an adverse inference needs to be drawn against the
prosecution for non-examination of the mother of the
deceased in terms of illustration (g) appended to Section 114
of Evidence Act that had the mother of the deceased been
examined she would not have supported the case of the
prosecution. The second argument advanced was that the
prosecution has failed to establish the motive of accused Kiran
for committing the murder of the deceased. Counsel urged
that accused Kiran deserves to be acquitted for failure to
establish motive is fatal to the case of the prosecution when
the prosecution seeks to establish the guilt of the accused on
the basis of "circumstantial evidence".
31. Who is a material witness? What is the effect of non-
examination of material witness on the veracity of the case set
up by the prosecution against an accused?
32. The answer to the aforesaid questions lies in the
following observations made by Supreme Court in the decision
reported as Takhaji Hiraji v Thakore Kubersing Chamansing AIR
2001 SC 2328:-
"So is the case with the criticism leveled by the
High Court on the prosecution case finding fault
therewith for non-examination of independent
witnesses. It is true that if a material witness, which
would unfold the genesis of the incident or an
essential part of the prosecution case, not
convincingly brought to fore otherwise, or where
there is a gap or infirmity in the prosecution case
which could have been supplied or made good by
examining a witness which though available is not
examined, the prosecution case can be termed as
suffering from a deficiency and withholding of such
a material witness would oblige the Court to draw
an adverse inference against the prosecution by
holding that if the witness would have been
examined it would not have supported the
prosecution case. On the other hand if already
overwhelming evidence is available and
examination of other witnesses would only be a
repetition or duplication of the evidence already
adduced, non-examination of such other witnesses
may not be material. In such a case the Court ought
to scrutinise the worth of the evidence adduced.
The Court of facts must ask itself -- whether in the
facts and circumstances of the case, it was
necessary to examine such other witness, and if so,
whether such witness was available to be examined
and yet was being withheld from the court. If the
answer be positive then only a question of drawing
an adverse inference may arise. If the witnesses
already examined are reliable and the testimony
coming from their mouth is unimpeachable the
Court can safely act upon it uninfluenced by the
factum of non-examination of other witnesses......"
33. Tested on the aforesaid anvil of law, can it be said that
the mother of the deceased was a material witness?
34. The testimony of Inspector Naval Kishore PW-26, throws
light on the said aspect of the matter. As already stated herein
above, Inspector Naval Kishore PW-26, deposed that the
mother of the deceased refused to make a statement under
Section 161 Cr.P.C. Merely because of the fact that the mother
of the deceased was present in the house in question around
the time of the murder of the deceased it cannot be assumed
that she was a material witness for the possibility that the
mother of the deceased was sleeping or was busy in some
household work around the time of the murder of the
deceased or because of any other reason could not acquire
any knowledge about the events which happened around the
time of the murder of the deceased cannot be ruled out. In the
absence of any material on record pointing towards the fact
that the mother of the deceased had any knowledge regarding
the events which happened around the time of the murder of
the deceased it cannot be said that the mother of the
deceased was a material witness.
35. Be that as it may, merely because a material witness is
not examined by the prosecution, a criminal court would not
lean to draw an adverse inference that if he was examined, he
would have given a contrary version. The illustration (g)
appended to Section 114 of the Evidence Act is only a
permissible inference and not a necessary inference. Unless
there are other circumstances also to facilitate the drawing of
an adverse inference, it should not be a mechanical process to
draw the adverse inference merely on the strength of non-
examination of a witness even if the witness is a material
witness. The afore-noted observations of Supreme Court in
Takhaji‟s case (supra) also bring out that the non-examination
of a material witness is not fatal in every case. It is only in
cases where there is an infirmity or doubt in the case set of
the prosecution, that the non-examination of material witness
assumes significance. In the instant case, even if it is assumed
that the mother of the deceased was a material witness, the
same would not be fatal to the case of the prosecution if the
prosecution is able to establish the guilt of accused Kiran
beyond any reasonable doubt.
36. In dealing with the second argument advanced by the
learned counsel for accused Kiran, suffice would it be to quote
the following observations of Supreme Court in the decision
reported as State of UP v Babu Ram (2000) 4 SCC 515 :-
"We are unable to concur with the legal proposition
adumbrated in the impugned judgment that motive
may not be very much material in cases depending
on direct evidence whereas motive is material only
when the case depends upon circumstantial
evidence. There is no legal warrant for making such a
hiatus in criminal cases as for the motive for
committing the crime. Motive is a relevant factor in
all criminal cases whether based on the testimony of
eye witnesses or circumstantial evidence. The
question in this regard is whether a prosecution must
fail because it failed to prove the motive or even
whether inability to prove motive would weaken the
prosecution to any perceptible limit. No about, if the
prosecution proves the existence of a motive it would
be well and good for it, particularly in a case
depending on circumstantial evidence, for, such
motive could then be counted as one of the
circumstances. However, it cannot be forgotten that it
is generally a difficult area for any prosecution to
bring on record what was in the mind of the
respondent. Even if the Investigating Officer would
have succeeded in knowing it through interrogations
that cannot be put in evidence by them due to the
ban imposed by law.
12. In this context we would reiterate what this Court
has said about the value of motive evidence and the
consequences of prosecution failing to prove it, in
Nathuni Yadav v. State of Bihar and State of Himachal
Pradesh v. Jeet Singh. Following passage can be
quoted from the latter decision:
"No doubt it is a sound principle to remember
that every criminal act was done with a
motive out its corollary is not that no criminal
offence would have been committed if the
prosecution has failed to prove the precise
motive of the accused to commit it. When the
prosecution succeeded in showing the
possibility of some ire for the accused
towards the victim, the inability to further put
on record the manner in which such ire would
have swelled up in the mind of the offender
to such a degree as to impel him to commit
the offence cannot be construed as a fatal
weakness of the prosecution. It is almost an
impossibility for the prosecution to unravel
the full dimension of the mental disposition of
an offender towards the person whom he
offended.""
37. It is also relevant to note the following observations of
Supreme Court in the decision reported as Ujjagar Singh v
State of Punjab (2007) 14 SCALE 428:-
"It is true that in a case relating to circumstantial
evidence motive does assume great importance but
to say that the absence of motive would dislodge the
entire prosecution story is perhaps giving this one
factor an importance which is not due and (to use the
clichi) the motive is in the mind of the accused and
can seldom be fathomed with any degree of
accuracy"
38. In view of the above judicial pronouncements, we do not
find any merit in the argument of the learned counsel that the
case set up by the prosecution against accused Kiran must fail
on account of the failure of the prosecution to prove the
motive of accused Kiran.
39. Having dealt with the arguments advanced by the
learned counsel for accused Kiran, we proceed to consider
whether the prosecution has been successful in establishing
the guilt of accused Kiran.
40. As already noted herein above, in her examination under
Section 313 Cr.P.C. accused Kiran admitted that the statement
Ex.PW-6/A was made by her. A reading of the statement
Ex.PW-6/A, contents whereof have been noted in para 5 above,
shows that accused Kiran stated to the police that a robbery
had been committed at her house on the day of the murder of
the deceased.
41. Whether the aforesaid recording contained in the
statement Ex.PW-6/A of accused Kiran which has formed the
basis of the registration of the FIR in the present case can be
used against her?
42. In the decision reported as Nisar Ali v State of UP AIR
1957 SC 366 the question which arose before Supreme Court
was that whether a statement contained in an FIR lodged by
an accused can be used against the co-accused. Supreme
Court answered the aforesaid question in negative in following
terms:-
"....An objection has been taken to the admissibility
of this report as it was made by a person who was a
co-accused. A first information report is not a
substantive piece of evidence and can only be used
to corroborate the statement of the maker under
Section 157 of the Evidence Act or to contradict it
under Section 145 of that Act. It cannot be used as
evidence against the maker at the trial if he himself
becomes an accused, nor to corroborate or
contradict other witnesses. In this case, therefore, it
is not evidence." (Emphasis Supplied)
43. In the decision reported as Faddi v State of MP AIR 1964
SC 1850 the accused who was charged with the offence of
murdering his step son lodged an FIR stating therein that he
had seen the dead body of the deceased floating in a well,
which statement was found to be incorrect. Relying upon
afore-noted observations made by Supreme Court in Nisar‟s
case (supra) it was contended that the first information report
lodged by the accused is an inadmissible piece of evidence.
Repelling the said contention, Supreme Court observed as
under:-
"The report is not a confession of the appellant. It is
not a statement made to a police officer during the
course of investigation. Section 25 of the Evidence
Act and Section 162 of the Code of Criminal
Procedure do not bar its admissibility. The report is
an admission by the accused of certain facts which
have a bearing on the question to be determined by
the Court viz. how and by whom the murder of
Gulab was committed, or whether the appellant‟s
statement in Court denying the correctness of
certain statements‟ of the prosecution witnesses is
correct or not. Admissions are admissible in
evidence under Section 21 of the Act. Section 17
defines an admission to be a statement, oral or
documentary, which suggests any inference as to
any fact in issue or relevant fact, and which is made
by any of the persons, and under the
circumstances, thereafter mentioned, in the Act.
Section 21 provides that admissions are relevant
and may be proved as against a person who makes
them. Illustrations (c), (d) and (e) to Section 21 are
of the circumstances in which an accused could
prove his own admissions which go in his favour in
view of the exceptions mentioned in Section 21 to
the provision that admissions could not be proved
by the person who makes them. It is therefore clear
that admissions of an accused can be proved
against him.
xxxx
It is on these observations that it has been
contended for the appellant that his report was
inadmissible in evidence. Ostensibly, the expression
„it cannot be used as evidence against the maker at
the trial if he himself becomes an accused‟ supports
the appellant‟s contention. But it appears to us that
in the context in which the observation is made and
in the circumstances, which we have verified from
the record of that case, that the Sessions Judge had
definitely held the first information report lodged by
the co-accused who was acquitted to be
inadmissible against Nisar Ali, and that the High
Court did not refer to it at all in its judgment, this
observation really refers to a first information report
which is in the nature of a confession by the maker
thereof. Of course a confessional first information
report cannot be used against the maker when he
be an accused and necessarily cannot be used
against a co-accused. Further, the last sentence of
the above-quoted observation is significant and
indicates what the Court meant was that the first
information report lodged by Qudratullah, the co-
accused, was not evidence against Nisar Ali. This
Court did not mean -- as it had not to determine in
that case -- that a first information report which is
not a confession cannot be used as an admission
under Section 21 of the Evidence Act or as a
relevant statement under any other provisions of
that Act. We find also that this observation has been
understood in this way by the Rajasthan High Court
in State v. Balchand and in State of Rajasthan v.
Shiv Singh and by the Allahabad High Court in
Allahdia v. State."
44. It may also be noted here that in Faddi‟s case (supra)
Supreme Court held that the fact that the accused tried to
mislead the police by giving false information is an
incriminating circumstance against him.
45. The legal principle which emerges from Faddi‟s case
(supra) is that where the accused himself lodges the first
information report, the fact of his giving information of crime
to the police is admissible against him as evidence of his
conduct under Section 8 of Evidence Act and that if the first
information report is a non-confessional statement the same
can be used against him as an admission under Section 21 of
Evidence Act.
46. What is meant by the word "confession"?
47. The word "confession" has not been defined in Evidence
Act. For a long time, Indian Courts have adopted the definition
of "confession" given in Article 22 of Stephen‟s Digest of Law
of Evidence. According to that definition, a confession is an
admission made at any time by a person charged with crime,
stating or suggesting the inference that he committed that
crime. However, in the decisions reported as R v Jagrup ILR 7
ALL 646 and R v Santya Bandhu 4 Bom LR 633 Allahabad High
Court and Bombay High Court respectively did not accept such
a wider definition and gave a narrower meaning to the word
"confession" holding that only a statement which is direct
acknowledgement of guilt would amount to confession and
that a statement which is merely an inculpatory admission
which falls short of being admission of guilt would not amount
to confession. The issue as to meaning of word "confession"
was ultimately settled by Privy Council in the decision reported
as Pakala Narayana Swami v Emperor 66 IA 66 where Lord
Atkin observed as under:-
"Moreover, a confession must either admit in terms
the offence, or at any rate substantially all the facts
which constitute the office. An admission of a
gravely incriminating fact, even a conclusively
incriminating fact, is not of itself a confession e.g.
an admission that the accused is the owner of and
was in recent possession of the knife or revolver
which caused death with no explanation of any
other man‟s possession. Some confusion appears to
have been caused by the definition of confession in
Article 22 of Stephen's Digest of the Law of
Evidence, which defines a confession as an
admission made at any time by a person charged
with crime stating or suggesting the inference that
he committed that crime. If the surrounding articles
are examined, it will be apparent that the learned
author after dealing with admissions generally is
applying himself to admissions in criminal cases,
and for this purpose defines confessions so as to
cover all such admissions, in order to have a
general term for use in the three following articles :
confession secured by inducement, made upon
oath, made under a promise of secrecy. The
definition is not contained in the Evidence Act,
1872; and in that Act it would not be consistent with
the natural use of language to construe confession
as a statement by an accused „suggesting the
inference that he committed‟ the crime."
48. The aforesaid observations of Lord Atkin in Pakala‟s case
(supra) received the approval of a 3-Judge Bench of Supreme
Court in the decision reported as Palvinder Kaur v State of
Punjab 1953 CriLJ 154.
49. In this regards, it is most apposite to refer to the decision
of Supreme Court reported as Aghnoo Nagesia v State of Bihar
AIR 1966 SC 119. In the said case, the accused who was
charged with the offence (s) of having murdered four persons
lodged an FIR with the police. Supreme Court divided the said
FIR into 18 parts for the purposes of determining its
admissibility. Parts 1, 15 and 18 contained recordings
pertaining to the fact that the accused went to the police
station to lodge the FIR; parts 2 and 16 contained recordings
pertaining to the motive of the accused for committing the
murders; parts 3, 5, 8 and 10 contained recordings pertaining
to the movements of the accused before and after the
commission of murders; part 8 also contained recordings
pertaining to intention of the accused; parts 4,6,9, 11 and 12
contained recordings pertaining to admission of guilt by the
accused as also his motive for committing the murders and
parts 7,13 and 17 contained recordings pertaining to
concealment of dead bodies and weapon of offence by the
accused and his ability to get recover the same. Supreme
Court reiterated the law laid down in Faddi‟s case (supra) with
respect to admissibility of an FIR lodged by the accused.
Thereafter it proceeded to determine that whether the afore-
noted 18 parts of the FIR in question amount to a confession or
not. It was held by Supreme Court that save and except parts
1, 15 and 18 which contained recordings pertaining to the fact
that the accused was the maker of the FIR and the parts which
come within the purview of Section 27 of Evidence Act, the
entire FIR amounts to confession and should be excluded from
evidence. The relevant discussion contained in the said
decision is being noted herein under:-
"Now, a confession may consist of several parts and
may reveal not only the actual commission of the
crime but also the motive, the preparation, the
opportunity, the provocation, the weapons used, the
intention, the concealment of the weapon and the
subsequent conduct of the accused. If the
confession is tainted, the taint attaches to each part
of it. It is not permissible in law to separate one part
and to admit it in evidence as a non-confessional
statement. Each part discloses some incriminating
fact i.e. some fact which by itself or along with other
admitted or proved facts suggests the inference
that the accused committed the crime, and though
each part taken singly may not amount to a
confession, each of them being part of a
confessional statement partakes of the character of
a confession. If a statement contains an admission
of an offence, not only that admission but also
every other admission of an incriminating fact
contained in the statement is part of the confession.
If proof of the confession is excluded by any
provision of law such as Section 24, Section 25 and
Section 26 of the Evidence Act, the entire
confessional statement in all its parts including the
admissions of minor incriminating facts must also
be excluded, unless proof of it is permitted by
some other section such as Section 27 of the
Evidence Act. Little substance and content would
be left in Sections 24, 25 and 26 if proof of
admissions of incriminating facts in a confessional
statement is permitted.
xxx
If the first information report is given by the
accused to a police officer and amounts to a
confessional statement, proof of the confession is
prohibited by Section 25. The confession includes
not only the admission of the offence but all other
admissions of incriminating facts related to the
offence contained in the confessional statement.
No part of the confessional statement is receivable
in evidence except to the extent that the ban of
Section 25 is lifted by Section 27." (Emphasis
Supplied)
50. In the decision reported as Bheru Singh v State of
Rajasthan (1994) 2 SCC 467 the accused was charged with the
offence (s) of having murdered his wife, 2 daughters and three
sons. The accused lodged a first information report wherein
besides confessing to his guilt, the accused stated about his
motive for committing the murders and the fact that his sister-
in-law was present at the time when he committed the
murders. It was held by Supreme Court that the statements
contained in the FIR pertaining to motive of the accused and
the presence of sister-in-law of the accused are non-
confessional in nature and can be used against him.
51. A perusal of the decisions of Supreme Court in Aghnoo
and Bheru‟s cases (supra) shows that there is an apparent
conflict between the two decisions. A further perusal of
Bheru‟s case shows that Aghnoo‟s case (supra) and the legal
position laid down therein that the confession includes not only
the admission of the offence but all other admissions of
incriminating facts related to the offence contained in the
confessional statement was not brought to the notice of
Supreme Court in Bheru's (case) supra.
52. In the instant case, no part of the statement Ex.PW-6/A of
accused Kiran contains the admission of the offence with
which she is charged. In view of the legal position enunciated
above, the recording contained in the statement Ex.PW-6/A of
accused Kiran that a robbery had been committed at her
house on the day of the murder of the deceased can be used
against her as the same is non-confessional in nature. It is
relevant being her conduct to mislead the police and hence
suggestive of a guilty mind.
53. Was any robbery committed at the house of the
deceased and accused Kiran on the day of the murder of the
deceased as claimed by accused Kiran?
54. The evidence of witnesses namely Rajender Sehrawat
PW-1 and Inspector Naval Kishore PW-26, establishes that a
gold chain was found on the person of the deceased and that
some foreign currency notes and jewellery articles were found
in an almirah lying in the room where the deceased was found
dead on the day of the murder of the deceased. Had a robbery
been committed at the house of the deceased and accused
Kiran, the robbers surely would have taken gold chain present
on the person of the deceased and other valuable articles lying
in the house of the deceased. The fact that valuable articles
were found on the person of the deceased as also in the house
in question when coupled with the fact that the police did not
find any signs of forced entry into the house of the deceased
belies the claim of accused Kiran that a robbery was
committed in the house in question on the day of the murder
of the deceased.
55. The fact of the matter is that accused Kiran tried to
mislead the police by falsely stating that a robbery had been
committed in the house in question on the day of the murder
of the deceased. What turns thereon?
56. In the decision reported as Mohibur Rahman v State of
Assam (2002) 6 SCC 715 the deceased was last seen on
24.01.1991 at 05.00 P.M. at a bus stand in the company of
accused Taijuddin and Mohibur Rahman and his body was
found 13 days after at a distance of 30 to 40 kilometers from
the bus stand where the deceased and accused was last seen
alive. Accused Taijuddin met the mother and cousin of the
deceased and falsely told them that the deceased had eloped
with one Balijan Begum. Supreme Court acquitted accused
Mohibur on the ground that there is no proximate link between
the time when the deceased was last seen alive in the
company of accused and the time of his death as also the
place where the deceased was last seen alive in the company
of accused and the place from where the body of the deceased
was recovered. However, Supreme Court convicted accused
Taijjudin. One of the facts which led Supreme Court to convict
accused Taijjudin was that accused Taijjudin had tried to
mislead the relatives of the deceased.
57. In the decision reported as Basanti v State of HP (1987)
3 SCC 227 accused Basanti and Asoo Ram were charged with
the offence of having murdered the husband of accused
Basanti. The case set up by the prosecution against accused
was that accused Basanti and Asoo Ram were having illicit
relations and that they murdered the deceased by striking a
blow on his neck while he was asleep. The High Court
convicted accused Basanti but acquitted accused Asoo Ram.
Supreme Court affirmed the decision of High Court and held
accused Basanti guilty of the murder of the deceased. One of
the facts which led the court to come to the said conclusion
was that she had tried to mislead the relatives of the deceased
by falsely stating to them that the deceased had gone away
from her village and had not returned.
58. In view of the judicial decisions enunciated above, the
fact that accused Kiran tried to mislead the police can certainly
be used as an incriminating circumstance against her.
59. The post-mortem of the deceased was conducted at
about 01.00 P.M. on 29.07.1996. The post-mortem report
Ex.PW-2/A of the deceased records that the deceased died 15
hours prior to the conduct of his post-mortem, meaning
thereby, that the deceased died around 10.00 P.M. on
28.07.1996. The statement Ex.PW-6/A of accused Kiran was
recorded at about 01.00 A.M. on 29.07.1996 as evident from
the endorsement Ex.PW-26/A. In her statement Ex.PW-6/A,
accused Kiran stated that she was present in the house in
question between the period 09.00 P.M. to 01.00 A.M. in the
intervening night of 28/29.07.1996. Accused Kiran has not
stated a word about her movements between the period 09.00
P.M. to 01.00 A.M. in the intervening night of 28/29.07.1996. In
the absence of any explanation of accused Kiran about her
movements between the period 09.00 P.M. to 01.00 A.M. in the
intervening night of 28/29.07.1996, it is most reasonable to
assume that accused Kiran would have at least gone once to
the room where her husband i.e. the deceased was sleeping
between the said period of 3 hours and would have learnt that
the deceased has been murdered. What would a wife do on
learning about the murder of her husband? She would raise
hue and cry and inform the police or her neighbours or
relatives about the murder of the deceased. However, accused
Kiran does nothing of the kind but remains silent. Accused
Kiran breaks her silence only when Const.Varinder PW-16 and
Const.Babu Ram PW-18, visit the house of the deceased and
accused Kiran and discover that the deceased has been
murdered. The aforesaid conduct of accused Kiran is most
suspicious and speaks volumes about her guilt.
60. Another incriminating circumstance against accused
Kiran is that accused Kiran has not offered any explanation as
to what had happened in the house in question on the day of
the murder of the deceased in her statement under Section
313 Cr.P.C. It is an established fact that the motorcycle
belonging to the household was found abandoned on the day
of the murder of the deceased. Accused Kiran has also not
offered any explanation as to how the motorcycle in question
reached the place from where it was found abandoned in her
statement under Section 313 Cr.P.C.
61. In this regards, it would be most apposite to quote the
following observations of Supreme Court in the decision
reported as Trimukh Maroti Kirkan v State of Maharashtra
(2006) 10 SCC 681:-
"Where an offence like murder is committed in
secrecy inside a house, the initial burden to
establish the case would undoubtedly be upon the
prosecution, but the nature and amount of evidence
to be led by it to establish the charge cannot be of
the same degree as is required in other cases of
circumstantial evidence. The burden would be of a
comparatively lighter character. In view of Section
106 of the Evidence Act there will be a
corresponding burden on the inmates of the house
to give a cogent explanation as to how the crime
was committed. The inmates of the house cannot
get away by simply keeping quiet and offering no
explanation on the supposed premise that the
burden to establish its case lies entirely upon the
prosecution and there is no duty at all on an
accused to offer any explanation." (Emphasis
Supplied)
62. In her statement under Section 313 Cr.P.C., accused
Kiran denied that Const.Varinder PW-16, Const.Babu Ram PW-
18 and Inspector Naval Kishore PW-26, visited the house in
question on the day of the murder of the deceased. The
depositions of aforesaid police officers that they had visited
the house in question on the day of the murder of the
deceased has not been controverted on behalf of accused
Kiran thus it is established beyond any doubt that the
aforesaid police officers visited the house in question on the
day of the murder of the deceased.
63. It is well established legal principle that in a case based
on circumstantial evidence where an accused offers false
explanation in his statement under Section 313 Cr.P.C. in
respect of an established fact, said false denial supply a
missing link in the chain of circumstances appearing against
him. (See the decisions of Supreme Court reported as State of
Maharashtra v Suresh (2000) 1 SCC 471 and Kuldeep Singh v
State of Rajasthan 2001 CriLJ 479)
64. From the above discussion, following four incriminating
circumstances appear against accused Kiran:-
I Accused Kiran tried to mislead the regarding the murder
of the deceased.
II The conduct of accused Kiran was most suspicious
around the time of the murder of the deceased.
III Accused Kiran did not give any explanation in respect of
the facts which were within her knowledge.
IV Accused Kiran gave false answers in her statement under
Section 313 Cr.P.C.
65. Are the aforesaid circumstances sufficient to conclude
that accused Kiran is guilty of the murder of the deceased?
66. The well known rule governing circumstantial evidence is
that :- (a) the circumstances from which the inference of guilt
of the accused is drawn have to be proved beyond reasonable
doubt and have to be shown to be closely connected with the
principal fact sought to be inferred from those circumstances;
(b) the circumstances should be of a determinative tendency
unerringly pointing towards the guilt of the accused; and (c)
the circumstances, taken collectively, are incapable of
explanation on any reasonable hypothesis other than that of
the guilt of the accused. Of late, the courts have added two
riders to the aforesaid principle namely, (i) there should be no
missing links but it is not that every one of the links must
appear on the surface of the evidence, since some of these
links can only be inferred from the proved facts and (ii) it
cannot be said that the prosecution must meet any and every
hypothesis put forward by the accused however far-fetched
and fanciful it may might be. In the decision reported as
Rakesh Kumar v State 183 (2009) DLT 658 a Division Bench of
this Court of which one of us was member of, namely Pradeep
Nandrajog J., held that circumstantial evidence in order to
furnish a basis for conviction requires a high degree of
probability, that is, so sufficiently high that a prudent man
considering all the facts, feels justified in holding that the
accused has committed the crime with which he is charged.
67. From the aforesaid four incriminating circumstances
appearing against accused Kiran, a prudent man would
definitely come to the conclusion that accused Kiran is the
guilty of the murder of the deceased. We thus hold that
accused Kiran is the guilty of the murder of the deceased.
CASE AGAINST ACCUSED SURINDER
68. As already noted herein above, learned Trial Judge has
convicted accused Surinder on the basis of following
recoveries effected at his instance:-
I Key of the motorcycle of the deceased.
II T-shirt found to be stained with blood of same group as
that of the deceased.
III Packets of notes found to be containing a slip issued by
UCO Bank Rohtak.
69. As per the case of the prosecution, three keys were got
recovered by accused Surinder in the presence of police
officers namely Inspector Naval Kishore PW-26 and SI Shanker
Banerjee PW-5 and that one of them was the key of the
motorcycle. The learned Trial Judge has accepted said fact
ignoring that no police officer has said that the key was used
on the motorcycle to start the same i.e. that the key was that
of the motorcycle. No witness of the prosecution has deposed
that he had been seeing the key and that it was the key of the
motorcycle. Thus, it only stands established that a bunch of
three keys was got recovered by Surender. There is no
evidence that one out of the said key was that of the
motorcycle.
70. Pertaining to the t-shirt got recovered by Surinder, the
only proof is that he got the t-shirt recovered. The part of his
confessional statement that he was wearing the t-shirt when
he committed the crime is inadmissible in evidence. The
prosecution had to prove through independent evidence that
the said t-shirt was worn by him. In the decision reported as
Prabhoo v State of UP AIR 1963 SC 1113 an axe, a shirt and a
dhoti which were found to be stained with human blood were
recovered from the house of the accused, at his instance.
Supreme Court clarified the provisions of Section 25 to 27 of
the Evidence Act by laying down that any statement of the
accused that with a particular weapon of offence, he had
committed the murder is not admissible under Section 27 of
the Evidence Act as it does not lead to any discovery of fact
within the meaning of Section 27 of the Evidence Act and even
the statement of the accused that blood stained shirt and
dhoti belong to him is not such a statement which leads to any
discovery within the meaning of Section 27. It was laid down
that it is fallacious to treat the fact discovered within Section
27 as equivalent to the object produced; the fact discovered
embraces the place from which the object was produced and
the knowledge of the accused as to this, and the information
given must relate distinctly to this fact. It was held that is not
legally permissible to admit evidence of the alleged statement
of the accused that the axe had been used to commit the
murder or the statement that the blood stained shirt and dhoti
were his. It was held that from mere production of the blood
stained articles by the accused, one cannot come to the that
the accused committed the murder inasmuch as the fact of
production cannot be said to be consistent only with guilt of
the accused and inconsistent with his innocence, for the
reason it is quite possible that someone else committed the
murder and kept the blood stained articles in the house of the
accused and that the accused might have produced the said
articles when interrogated by the police.
71. In the decision reported as Mani v State of Tamil Nadu
2008 (1) JCC 277 the case set up by the prosecution that the
appellant and one Moyyasamy had murdered deceased
Sivakumar who had strained relationship with Moyyasamy. On
24.11.1996 the deceased was chatting with his father
Arunachalam and his other family members when the
appellant came there and had a cup of coffee with
Arunachalam. At about 6.00 P.M. the appellant took the
deceased to his house. When the deceased did not turn up till
10.00 P.M. Arunachalam went to the house of the appellant
and found that blood was oozing from the house. Since the
house was locked Arunachalam came back to his residence
where one Amulnathan informed him that he had seen the
deceased in the company of the appellant and Moyyasamy at
07.00 P.M. On the next morning at 6.00 A.M. Arunachalam
again went to the house of the appellant and found trail of
blood near the said house and ultimately from that he traced
the body of the deceased which was lying in the nearby field.
The appellant got recovered blood stained clothes and kodvul
lying under the grass in an open ground which was 300 feet
away from the field from where the body of the deceased was
recovered. The Sessions Court convicted both the accused
persons whereas the High Court acquitted Moyyasamy but
convicted the appellant. Supreme Court acquitted the
appellant for following reasons: - (i) no evidence was led by
the prosecution to establish that the house where blood was
found was owned or exclusively possessed by the appellant;
(ii) Arunachalam is not a trustworthy witness inasmuch in view
of the fact that he realized that something unusual has
happened at 10.00 P.M. but he did not lodge a report with the
police till next day at 10 O‟ clock; (iii) the discovery is a weak
kind of evidence and cannot be wholly relied upon an and
conviction in such a serious matter cannot be based upon the
discovery; (iv) the prosecution never made any attempts to
prove that the clothes recovered at the instance of the
appellant belonged to him; (v) there is serious discrepancy in
the evidence pertaining to the recovery and (vi) even if the
evidence pertaining to recovery is accepted the fact that blood
stained clothes and kodvul were recovered at the instance of
the appellant does not connect the appellant with the crime.
(Emphasis Supplied)
72. In the decision reported as K.V. Chacko @ Kunju v State
of Kerela (2001) 9 SCC 277 an axe which was found to be
stained with human blood was recovered at the instance of the
appellant. It was held by Supreme Court that in the absence of
any evidence to establish that the death of the deceased was
caused by an axe, the said recovery does not connect the
accused with the murder of the deceased.
73. In the decision reported as Narsinbhai Haribhai Prajapati
v. Chhatrasinh and Ors AIR 1977 SC 1753 Supreme Court had
held that in the absence of any other evidence the
circumstances of seizure of blood stained shirt and dhoti from
the person of an accused and dharias from the houses of the
accused are wholly insufficient to sustain the charge of murder
against the accused.
74. In the decision reported as Surjit Singh v. State of Punjab
1993 CriLJ 3901 a watch belonging to the deceased and one
dagger which was found to be stained with human blood were
recovered at the instance of the accused. It was held by the
Supreme Court that said recovery by itself, does not connect
the accused person with the murder of the deceased. It was
further held that said circumstance may create some suspicion
but the same cannot take the place of proof.
75. From the afore-noted judicial decisions, the legal
principle which emerges is that mere recovery of an object at
the instance of the accused is a relevant fact only when it is
established by other evidence that the object recovered is
connected with the accused and the offence with which he is
charged. To put it pithly, the connection between the object
recovered, the accused and the offence with which the
accused is charged must always be established by "evidence
alinude". The decisions further bring out that mere recovery of
blood stained articles at the instance of an accused is not
sufficient to convict him for the offence of murder.
76. Had the prosecution been able to establish that one of
the keys recovered at the instance of accused Surinder was
that of the motorcycle of the deceased, the factum of recovery
of key of the motorcycle of the deceased at the instance of
accused Surinder would have gone a long way in proving the
guilt of accused Surinder. However neither the investigating
officer nor the prosecutor conducting the trial before the
learned Trial Court were alive to the aforesaid legal position
with respect to Section 27 of Evidence Act and a valuable
piece of evidence against Surinder has been lost due to
lackadaisical attitude of the police and prosecutor.
77. At the time when the instant judgment was being
dictated in the chamber, the fact that the prosecution has led
no evidence to establish that one of the keys recovered at the
instance of accused Surinder was that of the motorcycle of the
deceased. Since the motorcycle of the deceased was seized by
the police during the investigation of the present case, there
was a distinct possibility that the said motorcycle was still lying
in Malkhana and thus it could be verified that whether one of
the keys recovered at the instance of accused Surinder was
that of the motorcycle of the deceased. In such circumstances,
above captioned appeals were listed for directions and learned
counsel for the State was directed to ascertain the position
regarding the availability of the motorcycle of the deceased.
On the hearing dated 04.02.2010, learned counsel for the
State informed the Court that the motorcycle in question was
auctioned by the police in a public auction in the year 2007.
78. In view of the aforesaid factual and legal position,
nothing turns upon the fact that three keys and a t-shirt found
to be stained with blood of same group as that of the deceased
was found at the instance of accused Surinder.
79. The fact that a slip issued by UCO Bank Rohtak was
found affixed on one of the packets of notes recovered at the
instance of accused Surinder when seen in the light of the fact
that a slip containing the stamp of UCO Bank Rohtak was
found in the house of the deceased on the day of the murder
of the deceased is a suspicious circumstance for it does
suggests that packets of notes recovered at the instance of
accused Surinder "might" have been taken from the house of
the deceased. It is settled legal principle that suspicion cannot
take place of proof. Therefore, nothing also turns upon the fact
that a slip issued by UCO Bank Rohtak was found affixed on
one of the packets of notes recovered at the instance of
accused Surinder.
80. The sum and substance of the above discussion is that
the prosecution has not been able to connect accused Surinder
with the crime of the murder of the deceased.
CONCLUSION
81. The conclusion of the entire discussion is that:-
I Accused Kiran is convicted of the offences of committing
the murder of the deceased and giving false information to the
police. We maintain the sentence(s) awarded to accused Kiran
by the learned Trial Court.
II Accused Surinder is acquitted of the charge framed
against him.
82. Since the appellants are on bail, the bail bond and surety
bonds furnished by Surinder are discharged. The bail bond
and surety bonds furnished by Kiran Mehlawat are cancelled.
She is directed to surrender and suffer the remaining
sentence.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
February 26, 2010
dkb
