Shanti vs State
2010 Latest Caselaw 3412 Del

              THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment delivered on: 21.07.2010

+             Crl.A. 260/1997

SHANTI                                                        .....Appellant

                                     - versus -
STATE                                                         .....Respondent

Advocates who appeared in this case:
For the Appellant       : Ms Alpana Pandey, Amicus Curiae
For the Respondent      : Mr Pawan Sharma, Standing Counsel

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN

      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

V.K. JAIN, J.

1. This appeal is directed against the judgment and

Order on Sentence, both dated 25th February, 1997, whereby

the appellant was convicted under Section 302 and 201 of IPC

and was sentenced to undergo imprisonment for life and to

pay fine of Rs.1,000/- under Section 302 of IPC and was

further sentenced to undergo RI for 7 years and to pay fine of

Rs.1,000/- under Section 201 thereof. In default of payment

of fine, the appellant was sentenced to undergo RI for a period

of one year.

2. On 20th November, 1991, Nand Lal, a gang man in

Railways spotted a male dead body lying on the railway track

near Gurudwara Damduma in Nizamuddin. He informed his

superior Shri Mahender Singh, an Assistant Station Master,

Railway Station Hazrat Nizamuddin, who, in turn, informed

the Police Station, where this information was recorded and

was given to ASI Roshan Lal for investigation.

3. On reaching the spot, ASI Roshan Lal found a dead

body lying there. The head was found separated from the rest

of the body. The dead body was kept in the mortuary.

4. On 21st November, 1997, Chokhey Lal, son of the

deceased, came to the police station and identified the dead

body as that of his father Om Prakash. The case of the

prosecution, as disclosed in the FIR lodged by Shri Chokhey

Lal, elder son of the deceased, is that the appellant Shanti

Devi, wife of the deceased was having illicit relations with her

co-accused Kanwar Pal and that on 19th November, 1991, she

brought deceased Om Prakash to Delhi, on the pretext of

visiting Holy Family Hospital, where her co-accused Prem Pal,

with the help of the another person, strangulated him and

threw his dead body on the railway track. She also confessed

that her co-accused Kanwar Pal had got this work done and

before leaving for Delhi she had informed Kanwar Pal, who

then had sent her other co-accused Prem Pal and his

companion to Delhi. Her younger son Inder Pal also

accompanied them. It is also the case of the prosecution that

when the appellant returned to Bulandshahr, where she lived

with the deceased, without the deceased accompanying her,

that aroused suspicion of the neighbours who informed his

elder son Chokhey Lal and that during questioning by the

villagers, the appellant confessed that her husband had been

murdered in Delhi.

5. The prosecution examined 25 witnesses in support of

its case. No witness was examined in defence.

6. Besides ocular testimony of Inder Pal, son of the

appellant and the deceased, and the extrajudicial confession

alleged to have been made by her, the case of the prosecution

against the appellant is based upon the following

circumstances:

(i) the appellant had illicit relations with her co-

accused Kanwar Pal;

(ii) the appellant who was undergoing treatment at

Holy Family Hospital brought the deceased to Delhi on 19th

November,1991;

(iii) the appellant was not accompanied by her

husband when she returned from Delhi to Bulandshahr;

7. Inder Pal, son of the appellant and the deceased

came in the witness box as PW-4 and stated that the appellant

had asked his father to take her to Delhi for purchasing

medicines. He further stated that they reached Delhi at about

5.00 pm and went to Kurdi (the place where waste/rubbish is

thrown), where Kanwar Pal and Prem Pal, both of whom were

previously known to him, they having constructed their house

in Village Pondri, met them. There, Kanwar Pal strangulated

his father with the help of an Angochha, who died due to

strangulation. Thereafter, both of them kept the dead body of

his father on the railway track. He also stated that at the time

his father was strangulated, the appellant had caught-hold of

his legs and she was standing near the railway line when his

body was placed on the railway track. According to the

witness, thereafter, he returned to their village, with the

appellant. He also claimed that in the village, the appellant

told the villagers that Om Prakash had drowned in the river.

8. Chokhey Lal, elder son of the appellant and the

deceased, stated that Kanwar Pal, who used to come to their

house during construction of their house in Village Pondri,

had developed illicit relations with the appellant. He claimed

to have seen the appellant lying on the cot along with Kanwar

Pal and having beaten both of them. He further stated that

later the appellant had eloped with Kanwar Pal taking his

younger brother Inder Pal with her. He further stated that his

father used to sell chat in Bulandshahr Mandi. According to

him, after about one or two months, his cousin Hira Lal came

to him at Balki, where he used to reside with his in-laws, and

informed him of the murder of his father. He, thereupon,

came to Bulandshahr, where he found a number of people of

his village having gathered there. On inquiry made from the

appellant, she disclosed that she and Kanwar Pal had held his

father Om Prakash in their grip and Prem Pal had

strangulated him with an angochha and had thrown him on

the railway track near Nizamuddin. He also stated that this

confession was made after they had scolded and threatened

the appellant. He further stated that his younger brother

Inder Pal pointed out the place where his father had been

murdered, as also the place where his body was thrown on the

railway track. Since they could not find the dead body but

had noticed bloodstains on the railway track, they went to the

police station wherefrom they were taken to the mortuary and

the dead body of his father was shown to him.

9. PW-1 Chiranji is the brother of the deceased. He

stated that on 21st of the month about ten months before he

was examined in the court he came to the house of the

deceased in Bulandshahr along with Pritam Chokhey, Budha

and some other persons from the village and asked the

appellant as to how his brother was murdered. The appellant

told them that deceased Om Prakash had jumped into River

Yamunaji from the moving vehicle. However, on being

threatened and pressed to speak the truth, she told them that

Om Prakash was killed by strangulation, by Prem Pal and

another person. They then brought the appellant to Delhi.

She took them to railway lines near Nizamuddin Railway

Station and told them that she had caught-hold of the legs of

the deceased Om Prakash while her co-accused Prem Pal

strangulated him with an angochha and a third person, with

dark complexion, also aided Prem Pal in strangulating the

deceased. She also told them that after killing Om Prakash

his dead body was kept on the railway track. When they went

to that spot, the dead body was not found there. They then

came to police station, from where they went to the mortuary,

where dead body of the deceased was identified by them.

10. PW-5 Buddha stated that about ten years ago the

appellant had come to Delhi for her treatment along with her

husband and her son Inder Pal. Next day, the appellant

returned to the village along with her son. He was told by the

appellant that the deceased had jumped into River Yamuna

from the bus. On hearing this, a number of persons from the

neighbourhood collected there and the appellant was beaten

by them. She then stated that deceased Om Prakash was

killed in rail accident. Thereafter, he along with other persons

went to Police Station Nizamuddin along with the appellant,

where photograph of Om Prakash was shown to them and was

identified by them. The police made inquiry from them and

the appellant disclosed to the police that she had killed her

husband Om Prakash and put him on railway track. She also

disclosed that her co-accused Kanwar Pal and Prem Pal were

also there at that time.

11. PW-6 Pritam Singh stated that about 4-1/2 years

ago, the appellant along with her husband deceased Om

Prakash and their son Inder Pal, had come to Delhi for taking

medicines. The appellant returned alone to Bulandshahr and

raised alarm that her husband had been murdered by

someone. When the appellant was asked as to how her

husband had been murdered, she did not disclose anything.

Thereafter, about 50 persons from the village gathered there

and again asked the appellant as to how her husband had

been murdered. She then disclosed that her husband had

been murdered by Kanwar Pal and Prem Pal and she also

agreed to tell them about the dead body of the deceased if she

was taken to Delhi. Fiv/six persons, including him, then

came to Delhi along with the appellant. Initially, she took

them to different places but did not disclose the place where

the body of the deceased was lying. On their repeated

persuasions, she took them to the railway lines in the area of

Nizamuddin. No dead body was, however, found there, though

some blood was noticed by them on the railway lines. On

being again asked about the manner in which her husband

was murdered, the appellant told them that she and Kanwar

Pal had caught-hold of her husband whereas Prem Pal put an

angochha around her neck and strangulated him with that

angochha.

12. PW-7 Tikam Singh stated that on 20th November,

1991 at around 8.00 am one Jwala Ram of the village told him

that the appellant had got his brother murdered in Delhi. On

hearing this, he came to Bulandshahr along with other

villagers and found the appellant Shanti Devi present at her

home with her son Inder Pal. At that time, both of them were

weeping. Inder Pal told him that Shanti Devi had caught-hold

the legs of his father, whereas Prem Pal put his angochha

around his neck and Kanwar Pal took his father in his grip.

The appellant Shanti Devi, on being asked, repeated the same

story.

13. PW-8 Rambir Singh did not support the prosecution

and stated only this much that the appellant used to exchange

jokes with Kanwar Pal, to which he had objected.

14. PW-9 Radhey is the brother-in-law of Kanwar Pal,

co-accused of the appellant. He did not support the

prosecution and denied knowing the appellant.

15. PW-11 Hira Lal stated that when he reached the

house of the appellant, he found people beating her and

asking her about the whereabouts of deceased Om Prakash.

This witness is the nephew of the deceased. According to him,

the appellant told them that while she was going to Delhi with

the deceased, he committed suicide by jumping into River

Yamuna. When she was given further beating, she confessed

that Om Prakash was thrown by her, Prem Pal, Kanwar Pal

and one more person, on the railway track, after killing him.

On hearing this, he went to the village Balki, where Chokhey

Lal, son of the deceased was living with his in-laws, and told

everything to him.

16. PW-14 Onkar Singh stated that in the month of

November he found the appellant weeping. Delhi Police was

also present there. On enquiry made by him, the appellant

stated that she had taken her husband to Delhi where Prem

Pal and another person had murdered him by strangulating

him. However, in cross-examination by the learned Additional

PP, he admitted that police was not present when the

appellant made confession implicating herself, Prem Pal and

Kanwar Pal.

17. PW-15 Mahinder Verma is the Assistant Medical

Record Officer of the Holy Family Hospital. He has proved the

booklet Ex.PW-15/A in respect of the appellant and stated

that as per record, the appellant had come to the hospital only

once on 26th July, 1991.

18. PW-16 Surender Singh stated that about 5 or 6

years ago when he went to Nizamuddin Railway Station, the

appellant was present there with the police and she told the

police that her husband had been murdered by Kanwar Pal

and Brahm Pal.

19. PW-19 Dr. L.T.Ramani is an important witness in

this case. He conducted post-mortem on the dead body of

deceased Om Prakash and the report prepared by him is

Ex.PW-19/A. The following injuries were found by him on the

body of the deceased:

"Crush injury across the neck with complete bisection of head with wide band of abrasion all around over the skin. There was no evidence of blood clot in subcutaneous tissues around the crush-

injury. (Decapitation was postmortem in nature)

2. Crush injury across both shoulders. The soft tissues around crush injury were devoid of any extravasations of blood.

3. Two abrasions ½" and ½" each on the left cheek bone area. There was no blood clot beneath. There was no evidence of any antemortem external injury."

On internal examination, he noticed the following

injuries:-

"Scalp tissues showed blood clots over right parietal region. There was depressed fracture of posterior part of right parietal bone and adjoining occipital and across to the left parietal bone. Base of skull was also fractured. All ribs were fractured on both sides and both lungs were punctured. Left kidney was lacerated and other abdominal organs were normal."

He opined that injury to the skull was ante mortem,

caused by blunt object and the death was due to craneo-

cerebral injury.

20. PW-25 Inspector Jagmal Singh is the Investigating

Officer of this case. He stated that on 21.11.1991, Chokhey

Lal (PW-10) along with Budha (PW-5) and the appellant came

to the Police Post to enquire about the death of his father. He

took them to Subzi Mandi mortuary, where they identified the

dead body. He then recorded the statement of Chokhey Lal

and carried out investigation.

21. In her statement under Section 313 Cr.P.C., the

appellant admitted that her husband used to sell chat in

Bulandshehr and that they were living in village Pondri. She

also admitted that Kanwar Pal had constructed their house in

village Pondri. She however, denied having developed illicit

relations with him. She denied having come to Delhi with the

deceased and having made confession to the villagers. She

also denied any involvement in the murder of her husband.

Occular Evidence

22. We would like to first deal with the testimony of PW-4

Inder Pal, who is stated to be eye-witness of the murder of the

deceased. According to Inder Pal, the murder of the deceased

was committed by strangulating him with an Angochha and

he died on account of strangulation. However, the opinion of

PW-19 Dr L.T. Ramani, who opined that the death occurred

due to craneo-cerebral injury, falsifies the cause of death given

by this witness. The learned Trial Judge specifically noted

that the observations of Dr Ramani run contrary to the ocular

version given by PW-4 Inder Pal and disproves his story that

deceased Om Prakash was strangulated by tying Angochha

around his neck. He was of the view that though bisection of

the neck under a running train on account of the dead body of

the deceased having been put on rail track may have

obliterated the ligature mark but the symptoms of

strangulation would be found in the other organs of the body.

He noticed that Dr Ramani did not find blood clot in sub-

cutaneous tissues around the crush inury on neck and also

observed that the heart was NAD and the abdominal organs

were normal. The learned Trial Judge referred to the following

symptoms of strangulation given at page 199 in Chapter IX

("Deaths from Asphyxia") of 21st Edition of Modi's Medical

Jurisprudence:-

"The lungs are usually markedly congested, showing haemorrhagic patches and petechiae and exuding dark fluid blood on section.....The bronchial tubes usually contain frothy blood stained mucus. The right side of the heart is full of dark fluid blood and the left empty......The abdominal organs are darkly congested."

Noticing that none of these symptoms had been

mentioned in the postmortem report, the learned Trial Judge

declined to hold that the death of deceased Om Prakash was

caused by strangulation and was of the view that the story of

Angochha having been put around his neck for strangulation

could not be believed.

23. The finding of the learned Trial Judge, ruling out

strangulation, has not been disputed before us and no

material has been placed before us from which we may infer

that the deceased was strangulated before his body was put on

the rail track. As noted earlier, Dr Ramani was categorical in

opining that injury to the skull was ante mortem caused by a

blunt object and death was due to craneo-cerebral injury. PW-

4 does not say a word about any injury being caused on the

skull of the deceased. If the deceased died due to craneo-

cerebral injury and was not subjected to strangulation, the

version given by PW-4 Inder Pal is totally false and shows that

in fact murder of the deceased was not witnessed by him and

that is why he has given a false version of the manner in

which the deceased was subjected to death. Neither does he

say a word about injury to the skull of the deceased nor has

the story of strangulation given by him been found to be true.

It will, therefore, not be safe to rely upon the testimony of this

witness, particularly when the co-accused of the appellant,

who also were implicated by this witness have been given

benefit of doubt and have been acquitted by the trial court.

24. The learned Trial Judge refused to base the

conviction on the basis of this witness considering the

infirmities noted by him. He noted that when he was

examined in Court on 18.01.1995, he claimed that Prem Pal

as well as Kanwar Pal both were known to him, they having

constructed their house in village Pondri, but, since this was

not the case of the prosecution that Prem Pal was also

engaged in the construction of house, this witness, when he

was examined further on the next day, changed his previous

statement and stated that Prem Pal was not involved in

construction of the house. He, therefore, concluded that the

witness was under some influence. It would be appropriate to

note here that this witness is residing with the sister of the

deceased. It was also noticed by the learned trial Judge that

at one stage this witness stated that Prem Pal was known to

him he having come to their village along with his mother, but

in the next breath he stated that he had never seen Prem Pal

prior to this occurrence. Noticing that Kanwar Pal was not

named by the witness in his statement to the Police, he also

felt that since Kanwar Pal was alleged to be the person

responsible for the death of his father, the witness could not

have omitted his name at the first opportunity when his

statement was recorded by the police on 21.11.1991. It would

be pertinent to note here that Kanwar Pal was not unknown to

this witness, he admittedly, having constructed their house in

the village and, therefore, he could not have described him as

an unknown person, when he was examined by the police. In

fact, he specifically named Kanwar Pal in his statement under

Section 161 of Cr.P.C. when he said that Prem Pal used to

come to their house along with Kanwar Pal, who was a regular

visitor to their house.

25. When he was examined in the Court PW-4 Master

Inder Pal stated that at the time his father was strangulated,

the appellant had caught hold of his legs. No such averment

was, however, made by him in his statement under Section

161 of the Code of Criminal Procedure. In his statement,

under Section 161 of Cr.P.C. Inder Pal stated that it was Prem

Pal, co-accused of the appellant, who had strangulated the

deceased. The same was the allegation made in the FIR lodged

by his brother Chokhey Lal, but, when he was examined in the

Court, Inder Pal claimed that his father was strangulated by

Kunwar Pal as well as Prem Pal. There was no reference to the

third person during his deposition in the Court. In his

deposition in the Court, this witness stated that when the

villagers asked the appellant as to where her husband was,

she stated that he had drowned in the river. However, no

such averment was made by him in his statement under

Section 161 of Cr.P.C. The contradiction and infirmities found

in the testimony of this witness cannot be said to be minor,

attributable to loss of memory with the passage of time, and

the age of the witness. They go to the very root of his

testimony and cast a serious doubt on his truthfulness.

26. The case of the prosecution is that there was a

conspiracy between the appellant and her co-accused Kanwar

Pal to commit murder of deceased Om Prakash since they

were having illicit relations and wanted to get rid of him and it

was pursuant to that conspiracy the deceased was brought by

the appellant to Delhi, on the pretext of purchasing medicines

for her. If the appellant was party to a criminal conspiracy to

commit murder of her husband, it is most unlikely that she

would have bought her son to Delhi along with her husband.

If she had planned murder of her husband, she obviously

would not be so foolish so as to bring her son with them and

also take him to the place where the murder was to be

committed. She knew it that if she took her son with her to

the place her husband was to be murdered, he would be an

eye-witness of the murder and there would always be a threat

of his spilling the beans and disclosing the incident to other

members of the family, the deceased being none other than his

father. There was no compulsion on the appellant to bring

PW-4 to Delhi. She could as well have brought only her

husband with her, leaving PW-4 at home. Hence, the presence

of this witness at the time of murder of the deceased was not

at all likely in case the appellant was a party to the murder.

Taking into consideration the facts and

circumstances noted above, we find no reason to take a view

contrary to that taken by the learned trial Judge as regards

reliability of this witness and feel that his presence at the time

of the murder of the deceased is highly doubtful. Hence, the

testimony of this witness cannot be used for the purpose of

convicting the appellant.

Extra-judicial Confession

27. It is trite law that a confession cannot be used against an

accused, unless the court is satisfied that it was made voluntarily.

Section 24 of the Evidence Act lays down that a confession caused

by inducement, threat or promise is irrelevant in criminal

proceedings, under certain circumstances. A confession would be

irrelevant if the following conditions were satisfied: (1) it appears to

the court to have been caused by any inducement, threat or

promise; (2) the said threat, inducement or promise has reference

to the charge against the accused person; (3) it proceeds from a

person in authority; and (4) the inducement, threat or promise is

sufficient to give the accused person grounds, which would appear

to him reasonable, in believing that he would gain an advantage or

avoid any evil of a temporal nature, in reference to the proceedings

against him.

28. In Aher Raja Khima Vs. State of Saurashtra: AIR 1956

SC 217, the Supreme Court, inter alia, observed as under:

"It is abhorrent to our notions of justice and fair play, and is also dangerous to allow a man to be convicted on the strength of a confession unless it is made voluntarily and unless he realises that anything he says may be used against him; and any attempt by a person in authority to bully a person in to making a confession or any threat or coercion

would at once invalidate it if the fear was still operating on his mind at the time he makes the confession if it "would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him."

29. If the facts and circumstance surrounding the making of

a confession appear to be casting doubt on its veracity or

voluntariness, the court may refuse to use it against the accused

even if it is found to be otherwise admissible in evidence. What the

court has to see is whether the accused, while making the

confession was of free mind or not. No doubt a free and voluntary

confession deserves the highest credit since it is presumed to flow

from a sense of guilt in the accused, but if it is tainted by

inducement, promise or threat, that would be enough to exclude

the confession from consideration. The inducement may take the

form of a promise or a threat and often it involves both, a promise

to the accused to forgive him if a disclosure was made by him and a

threat to punish him if the disclosure was not made. The promise

is attached to making the confession, whereas threat is attached to

the silence on the part of the accused. If the inducement, promise

or threat extended to the accused, tend to give him reasonable

grounds to believe that by making confession he would gain any

advantage or avoid an evil that would be enough to exclude the

confession from consideration.

30. In Sibu Ganjhu vs. State of Jharkhand: 2004

Cr.L.J. NOC 35, an extra-judicial confession was alleged to

have been made by the appellant after he was apprehended

and assaulted by the villagers. The confession was held to be

involuntary.

31. We find that the learned Trial Judge himself noted a

number of contradictions and discrepancies with respect to

the alleged confession and in fact he refused to base the

conviction of Kanwar Pal and Prem Pal on the basis of this

confession. As noted earlier, according to PW-1, the appellant,

who initially claimed that Om Prakash had jumped into river,

was threatened and pressed to speak truth before she stated

that he was killed by strangulation by Prem Pal and another

person. PW-5 Budha who, according to the prosecution had

accompanied the informant and the appellant to the police

station on 21.11.1991 has stated that the appellant was

beaten by a number of persons from the neighbourhood, who

had collected at her house. PW-1 Hira Lal also stated that

initially the appellant told them that the deceased had

committed suicide by jumping into river Yamuna, but, when

she was given further beatings, she confessed that he was

thrown by Prem Pal, Kanwar Pal and one more person on the

railway track, after killing him. Thus, it is quite clear that the

appellant was given a beating by the villagers before she made

the alleged extra judicial confession. The confession alleged to

have been made by her, therefore, cannot be said to be voluntary

since there is a reasonable possibility of the appellant having made

it with a view to avoid further beating at the hands of the villagers.

32. As per the extra judicial confession alleged to have

been made by the appellant, the deceased was killed by

strangulating him using an Angochha. As noted earlier, there

is no evidence of the deceased having been strangulated. The

postmortem report reveals that an ante mortem injury was

caused on the skull of the deceased from a blunt object and

his death was due to craneo-cerebral injury. None of the

witnesses of the alleged confession have said that the

appellant had told them about injury to the skull of the

deceased. The very fact that the cause of death alleged to have

been disclosed in the confessional statement of the appellant

was not correct is a strong indicator that either no confession

was made by the appellant or the confession made by her was

not voluntary, having been made only with a view to escape

further beating at the hands of the villagers and that is why

the cause of death of the deceased disclosed in the

confessional statement is at variance with the cause of the

death found in the post-mortem report.

33. According to PW- 5 Budha, when the appellant was

beaten she stated that Om Prakash was killed in a rail

accident, whereas according to PW-1 Chiranji Lal, when the

appellant was asked as to how the deceased was murdered,

she initially claimed that he had jumped from a moving vehicle

and when threatened and pressed further, she told that he

was killed by strangulation by Prem Pal and another person.

PW-6 Pritam Singh on the other hand said that the appellant

had stated that her husband was murdered by Kanwar Pal

and Prem Pal. Thus, according to this witness, the appellant

had implicated Kanwar Pal whereas according to PW-1

Chiranji she did not name Kanwar Pal but, implicated another

person. The version of the alleged extra judicial confession

given by PW-7 Teekam Singh is also different. According to

him, it was Inder Pal, who stated that appellant had caught

hold of the legs of his father, whereas Prem Pal had put

Angochha around his neck and Kanwar Pal had taken his

father in his grip. Thus, this witness does not claim any extra

judicial confession on the part of the appellant, whereas other

witnesses do not say that it was Inder Pal, who had told them

as to how deceased Om Prakash was murdered. The version

given by PW-11 Hira Lal is altogether different. According to

him, the appellant confessed that Om Prakash was thrown by

Prem Pal, Kanwar Pal and one more person on the rail track

after killing. Thus, according to this witness, three persons,

besides the appellant were implicated in the confessional

statement of the appellant. According to PW-14 Onkar Singh,

the appellant had stated that it was Prem Pal and another

person, who had murdered her husband by strangulating him.

Thus, according to this witness, the Kanwar Pal was at all

named in the extra judicial confession of the appellant. The

contradictions in the testimony of the prosecution witness on

the extra judicial confession alleged to have been made by the

appellant cannot be said to be minor or insignificant. These

contradictions relate to the core part of their testimony, i.e.,

who were implicated by the appellant for the murder of her

husband. Material contradictions on the most vital part of

their testimony seriously impinge upon the credibility of these

witnesses and it will not be safe to base the conviction on the

testimony of such witnesses.

34. We would also like to note that as per PW-5 Budha,

who according to the prosecution had accompanied the

appellant and the informant to the police station on

21.11.1991, when the appellant was given a beating and was

questioned in the village, she told them that the deceased was

killed in the rail accident and when they came to police station

Nizamuddin, she disclosed, before the police, that she had

killed Om Prakash and put him on the rail track and at that

time Prem Pal had strangulated Om Prakash and, thereafter,

all the three i.e., the appellant, Prem Pal and Kanwar Pal had

put Om Prakash on the rail track, after lifting him from the

place where he was strangulated. If the testimony of PW-5

Budha is to believed, there was no confession made before the

villagers and the confession was made only before the police

on 21.11.1991. Though this witness was cross-examined by

the learned Addl.PP, this part of his deposition was not

disputed in his cross-examination. Even according to PW-16

Surender Singh, the police was with the appellant when she

disclosed that her husband was murdered by Kanwar Pal and

Prem Pal. Though this witness was also cross-examined by

the learned APP, the prosecution did not dispute his

deposition that the police was present at the time the

appellant made this statement. Therefore, if we go by the

deposition of PW-11 and PW-16, the confessional statement

was made by the appellant in the presence of the police

officers. If that be so, the statement made by the appellant

would be inadmissible in evidence.

According to PW-10 Chokhey Lal, elder son of the

appellant, she had told them that it were she and Kanwar Pal,

who had held deceased Om Prakash in their grip when he was

strangulated by Prem Pal. However, in the FIR lodged by him,

he stated that the appellant had told them that it was Prem

Pal who had strangulated her husband with the help of

another person whose name was not known to her and who

had held both the hands and legs of the husband. Thus as

per the version given in the FIR, the appellant had not

disclosed, the involvement of Kanwar Pal in the actual murder

of husband, when she was questioned by the villagers. Thus,

there are serious contradictions in the testimony of Kanwar

Pal as to what the appellant had actually disclosed to them.

35. It has come in the deposition of PW-1 Chiranji and

PW-6 Preetam Singh that when the appellant was brought to

Delhi, she took them to railway track near Nizamuddin

Railway Station and at that time, she confessed that she had

held the legs of deceased Om Prakash when he was

strangulated. However, no such claim was made by PW-10

Chokhey Lal either in the FIR lodged by him or in his

deposition in the Court. This is yet another material

contradiction as regard the alleged confessional statement.

36. According to PW-25, Inspector Jagmal Singh, the

informant, accompanied by PW-5 Budha and the appellant Shanti

Devi, had come to the Police Post to enquire about the death of the

father of the informant. This part of the deposition of the

Investigating Officer discredits the story of extra-judicial confession

alleged to have been made by the appellant in the village or near

railway track in Nizamuddin on 21st November, 1991. Had the

appellant already confessed to the murder of the deceased, there

could be no question of she and her companions, making enquiry

about the deceased. In that case, the informant Chokhey Lal and

Buddha, immediately on reaching the Police Post, would have

complained to the Investigating Officer that the murder was

committed by the appellant, Kanwar Pal and Prem Pal and that she

had confessed to the crime. Here, the version given by PW-5 Budha

becomes important since, according to him, it was during the

enquiry made by the police that the appellant had disclosed that

she, alongwith Kanwar Pal and Prem Pal, had killed her husband.

Circumstantial Evidence

37. The learned Trial Judge convicted the appellants on the

circumstance that (i) she had illicit relations with Kanwar Pal; (ii)

she came to Delhi alongwith deceased and her son and (iii) when

she returned, the deceased was not with her. As noted earlier,

Kanwar Pal, co-accused of the appellant has been acquitted by the

Trial Court. If the appellant was having illicit relationship with

Kanwar Pal, that became a motive not only for her, but also for

Kanwar Pal to eliminate the deceased, so that there was no

impediment in their illicit affair. Kanwar Pal having been

acquitted, it would be difficult to sustain the conviction of the

appellant on the same set of evidence considering the unacceptable

quality of the evidence and other facts and circumstances of the

case. In any case, mere illicit relationship between the appellant

and the Kanwar Pal is not sufficient to prove her complicity in the

murder of the deceased though it could be a motive for her to

eliminate him or get him eliminated. This circumstance does not

unerringly point out towards the complicity of the appellant in the

murder of her husband and is not totally incompatible with her

innocence and does not show that in all human probability the

murder of her husband could not have been committed, without

her being involved in the crime.

38. As regards the appellant coming to Delhi with her

husband and younger son, the case of the appellant is that she did

not come to Delhi, as claimed by the prosecution. PW-6 Pritam

Singh has stated that about 4-1/2 years ago the appellant had

brought her husband to Delhi for purchasing medicines and had

returned without him. This witness also deposed about the extra-

judicial confession alleged to have been made by her. We have not

believed the case of the prosecution in respect of the alleged extra-

judicial confession. We found serious contradictions and

discrepancies in the deposition of witnesses in this regard. More

importantly, the witness also does not claim to have actually seen

the appellant going to Delhi with the deceased on 19 th November,

1991 or having seen her coming without him on 20th November,

1991. He does not say at what time he saw the appellant coming to

Delhi with the deceased, and their son. How did he come to know

that they were going to Delhi and at what time and on which date

he saw the appellant returning from Delhi. He claims that while

going to Delhi with the deceased, the appellant was accompanied

also by her son Inder Pal. We have disbelieved the story of Inder

Pal having accompanied her to Delhi and having witnessed the

murder of his father. In these circumstances, it is difficult to hold,

on the basis of a bald statement of this witness, that the appellant

had brought the deceased to Delhi on 19th November, 1991 and

had returned to the Village, without him, on 20th November, 1991.

PW-1, PW-7, PW-10 and PW-11 do not claim having seen the

appellant coming to Delhi with her husband and returning to the

village without his accompanying him. As far as PW-5 is

concerned, he has admitted that he had not seen the appellant

coming to Delhi, with the deceased. The story of the appellant

having brought her husband to Delhi and having returned alone

also does not harmonize with the statement of the Investigating

Officer that she along with Budha and her son PW-10 Chokhey Lal

had come to the Police Post to enquire about her husband. Had she

brought her husband to Delhi, as the case of the prosecution is, the

informant Chokhey Lal, instead of going to the Police Station with

her to enquire about his father, would have directed this enquiry to

the appellant. Even otherwise, it is difficult to accept that the

appellant would have, in the knowledge of others, brought the

deceased to Delhi, for the purpose of getting him murdered and

then returned alone to the village, since she knew that if she

returned alone, she was bound to be questioned by her family

members, relatives and neighbours, as to what had happened to

her husband, who had accompanied her to Delhi and she would

not have any convincing answer to give to them.

39. It has also come in the deposition of some witnesses that

when questioned in the village, the appellant had told them that

the deceased had jumped in river Yamuna from the moving bus.

PW-6 Pritam Singh, however, contradicted these witnesses when he

said that the appellant, on returning alone to Bulandashahr, had

raised an alarm that her husband had been murdered by someone.

Moreover, we find no such averment either in the FIR lodged by

PW-10 or in his deposition in the Court. We, therefore, are not

inclined to believe this part of the evidence.

40. One reason given by the learned Trial Judge for

convicting the appellant was that dead body of the deceased was

recovered at her instance. This is factually incorrect since the case

of the prosecution is that the dead body was discovered at 01.30

AM on 20th November, 1991, whereas the appellant is alleged to

have come to Delhi with her son and the villagers only on 21 st

November, 1991 and at that time, the dead body was lying in the

mortuary.

41. For the reasons given in the preceding paragraphs,

the appellant is given benefit of doubt and is hereby acquitted.

Her bail bond stands discharged. The appeal is allowed.

V.K. JAIN, J

BADAR DURREZ AHMED, J JULY 21, 2010/BG/Ag/RS