Yoginder Kumar vs State (N.C.T. Of Delhi)
2010 Latest Caselaw 1599 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Judgment reserved on: February 02, 2010
                               Judgment delivered on: March   22, 2010


+     CRIMINAL APPEAL NO.138/1997

      YOGINDER KUMAR                             ....APPELLANT
                                Through:    Sumit Verma, Advocate/
                                            Amicus Curiae

                     Versus

      STATE(N.C.T. OF DELHI)                      .....RESPONDENT
                         Through:           Mr. Pawan Sharma, Standing
                                            Counsel


      CORAM:
      HON'BLE MR. JUSTICE A.K. SIKRI
      HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2.    To be referred to the Reporter or not?             Yes
3.    Whether the judgment should be
      reported in Digest ?                               Yes


AJIT BHARIHOKE, J.

1. The present appeal is directed against the impugned judgment

dated 05.03.1997 convicting the appellant under Section 302 IPC for

causing the death of his wife Babli (hereinafter referred to as the

„deceased‟) as also against the consequent order on sentence dated

06.03.1997 vide which the appellant has been sentenced to

imprisonment for life and to pay fine of Rs.10000/-, in default of

payment of which to undergo RI for a further period of one year, for the

offence punishable under Section 302 IPC.

2. Briefly stated, case of the prosecution is that on 15.03.1992 at

7.15 am, information was received at Police Station Vinay Nagar that

some untoward incident had taken place at P-160, Village Pillangi. This

information was recorded in the police station as DD No.9A and the

same was entrusted to SI Jeewan Kumar (PW15) for investigation. On

receipt of the DD report, SI Jeewan Kumar left for the place of

occurrence alongwith Constable Ramesh Chand (PW10). On the way to

the spot of occurrence, SI Jeewan Kumar met Jaipal Singh (PW3) who

pointed towards the appellant, who was running away in the gali and

told SI Jeewan Kumar that the appellant had killed his wife. Constable

Ramesh and PW Jaipal chased the appellant and apprehended him.

Thereafter, they all along with the appellant went to the place of

incident where they found the dead body of the deceased lying on a

mattress on the floor.

3. In the meanwhile, SI Kulwant Singh (PW16) also reached at the

spot of occurrence along with the crime team. The Investigating Officer

SI Kulwant Singh met PW3 Jaipal at the spot and recorded his

statement Ex.PW1/A. In the said statement, PW Jaipal stated that the

appellant Yoginder lived with his wife Babli in the house of his brother

as a tenant. He stated that on that day at about 4:00 am, 3-4 persons

came and called the appellant. He asked them as to what was the

matter but in the meantime, the appellant came out and took them

inside his room. He further stated that on the same day around 6.30

am, the said persons came out of the appellant‟s room and stated that

„bahu‟ has died. On that, he became suspicious and asked them as to

how she has suddenly expired, to which the appellant replied that the

deceased had been suffering from stomach ache, as a result of which

she died. Thereafter, he went into the room of the appellant and saw

that the deceased was lying on the floor on a sheet and there was

blood at the spot. He also noticed injury marks on her left eye. On

seeing this, he told the appellant and those persons to refrain from

moving the body as he was going to inform the police. He further

stated that at about 7:20 am, when he was going to inform the police,

he saw the police coming towards the village and he narrated the

incident to the police. He further stated that when they reached near

the place of occurrence, he saw the appellant fleeing away and he and

Constable Ramesh Chand chased and apprehended him. PW3 Jaipal

Singh suspected the appellant Yoginder of committing murder of the

deceased. The Investigating Officer appended his endorsement

Ex.PW16/A on the statement and sent it to the police station for the

registration of the case. On the basis of the rukka, the formal FIR No.

113/92 was recorded.

4. The Investigating Officer prepared the rough site plan Ex.PW16/B

of the spot and also got the place of occurrence photographed. He also

took into possession one quilt Ex.P-1, a bed sheet Ex.P-2, a mattress

Ex.P-3, a steel glass Ex.P-4, broken bangles Ex.P-5, after sealing them

into separate parcels, vide seizure memos Ex.PW3/A,B,C,D & G

respectively. He also seized the blood stained plaster from the wall of

the room as also the control plaster vide memos Ex.PW3/E and

Ex.PW3/F. The Investigating Officer conducted the inquest proceedings

and sent the dead body to the mortuary of Safdarjang Hospital. The

appellant was arrested and interrogated at the place of occurrence and

he made a disclosure statement Ex.PW15/A, pursuant to which he got

recovered a wooden „phatti‟ Ex.P-6, which was sealed and taken into

possession vide memo Ex.PW3/H. Thereafter, the appellant led the

police party to Sanjay Park in Laxmi Bai Nagar, where from a garbage

dump, he got recovered a tube Ex.P-7containing one aluminium

phospide tablet, which was seized vide memo Ex.PW3/J. The

Investigating Officer also recorded the statements of witnesses.

5. On 16.03.1992, the investigation of the case was taken over by

Inspector Shiv Lal (PW14) Incharge, Special Staff. On 17.03.1992, the

father and other relatives of the deceased identified the dead body,

thereafter, the dead body was sent for post mortem. The post-mortem

was conducted by Dr. Chander Kant, PW9, who found abrasions on the

right side of the neck and on the right wrist of the deceased, as also a

contused lacerated wound in the left eye. The doctor opined that all

injuries were ante-mortem in nature and cause of death was manual

strangulation. Time since death was about 3 ½ days. He proved his

report Ex.PW9/A. He also preserved the blood sample and viscera of

the deceased and handed over the same to the police along with the

clothes of the deceased, which articles were taken into possession vide

memo Ex.PW14/A. Inspector Shiv Lal, PW14, deposited said case

property in the Malkhana. The case property was later sent to the CFSL

for chemical analysis and the CFSL reports were obtained. On

completion of the necessary formalities of investigation, the challan

was filed in court. The appellant was charged for the offence of

murder of his wife Babli punishable under Section 302 IPC. He pleaded

innocence and claimed to be tried.

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

has examined 16 witnesses in all. However, the material witnesses for

the purpose of adjudication of this appeal are PW2 Inder Raj Ahuja, the

employer of the appellant, PW3 Jaipal Singh, complainant, PW4 Rajpal

Singh, owner-cum-landlord of House No. P-161, Village Pillangi i.e.

place of occurrence, PW5 Satbir Singh, co-employee of the appellant in

whose presence the appellant is claimed to have made an extra-

judicial confession besides the brothers and father of the deceased

namely PW7 Rakesh Kumar, PW8 Harpal Singh and PW11 Ram

Swaroop who have been examined to establish the motive of crime.

7. PW3 Jaipal Singh, complainant has not supported the case of the

prosecution and he was cross-examined by the learned APP. He

testified that the appellant and his wife were living in a room in House

No. P-161, Village-Pillangi as tenants of his brother Rajpal Singh. The

police arrived at the place of occurrence before the dead body of

deceased Babli could be removed and the appellant told that Babli had

died because of Cholera. He denied the incriminating facts detailed in

his purported complaint statement Ex.PW1/A but admitted his

signatures thereon.

8. PW4 Rajpal Singh, the owner of House No. P-161, Village-Pillangi

deposed that he had let out one room in his house to the appellant

about 1½ month prior to the death of Babli. The appellant and his wife

used to live there. He, however, stated that on the date of incident, he

was not in Delhi. In his cross-examination by learned counsel for the

appellant, he admitted the suggestion that the appellant and his wife

never quarrelled in his presence and they both were living a normal

life.

9. PW2 Inder Raj Ahuja is the proprietor of M/s. Ahuja Furniture

House. He is a hostile witness and he has not fully supported the case

of the prosecution. PW2 Inder Raj Ahuja testified that the appellant

was employed with him as daily wager for the last about 6/7 months

before the occurrence. 4/5 days before the „Holi‟ festival of 1992, the

appellant came to him in the morning at around 07:00-07:30 a.m. and

informed that someone in his family was unwell and was vomiting. He

(witness) advised the appellant to remove the said person to

Safdarjung Hospital for treatment. The witness further testified that

the appellant requested him if he could send someone to call his

parents and he wanted his co-worker Satbir (PW5) to be sent to his

parent‟s house. Thereafter, the appellant and Satbir left his shop. In

the cross-examination by the learned Prosecutor, PW2 denied that he

ever told the police that the appellant and his wife had a strained

relationship or that wife of the appellant complained to him that the

appellant was not giving her money to meet the expenses or that she

was not permitted to meet her son at Meerut. He also denied the

suggestion that on 14th March, 1992 at about 06:00 a.m., the appellant

told him that his wife was having stomach pain and he wanted her to

be treated by his father or that he advised the appellant to take his

wife to Safdarjung Hospital. He, however, admitted in his cross-

examination that the father of the appellant had visited him on the

said day at 02:00 p.m. and enquired about the address of the

appellant.

10. PW5 Satbir claims himself to be the co-employee of the appellant

at M/s. Ahuja Furniture House, Lodhi Colony. He testified that the

appellant was married to the deceased 7/8 years prior to her death and

their relationship since the inception of marriage was strained. There

was a litigation going on between the appellant and his wife on

account of the dowry demand. The witness also stated that the

deceased had gone to live with her parents but somehow, the

appellant brought her to Delhi. He further deposed that the appellant

used to tell him that he had brought the deceased to Delhi in order to

kill her. PW5 Satbir also deposed that five or six days prior to „Holi‟ of

the year 1992, while he was present at the workshop of M/s. Ahuja

Furniture House, the appellant came there at around 05:30-06:00 a.m.

and requested him to go and call his father as Babli had died and at

that time, he also made an extra-judicial confession saying "Maine

Babli ka kam tamam kar diya hai" and that he needed his father‟s

presence to cremate Babli.

11. PW7 Rakesh, PW8 Harpal Singh and PW11 Ram Swaroop are

brothers and father of the deceased. They have given almost identical

statements. According to them, Babli was married to the appellant

about 14 years back. On her second visit to her parental home, Babli

complained that the appellant and his parents used to taunt and

harass her on account of bringing insufficient dowry. She was once

sent to her father to bring Rs. 5000/- and on another occasion, she was

sent to bring Rs. 3000/- but her father could meet the demand of Rs.

3000/- only. They further stated that 3 years prior to the incident,

Babli visited her parent‟s house and told her brothers and father that

her husband wanted her father to give him Rs. 15,000/- for purchasing

a bus. PW11 Ram Swaroop went to her matrimonial home with Rs.

10,000/-. When he verified from the neighbours of the appellant, he

came to know that the appellant had no intention to purchase any bus,

thus, he came back without giving said amount to the appellant. 2/3

days later, the appellant sent Babli back to her parent‟s house. Her

clothes were torn and she told that she had been beaten and harassed.

Thereafter, she lived with her father for two months. She also filed a

maintenance petition against the appellant in Muzzafar Nagar court.

However, the matter was compromised with the intervention of some

respectable people and the appellant took the deceased with him to

Delhi.

12. PW9 Dr. Chander Kant conducted the post-mortem examination

on the dead body of the deceased and found following ante-mortem

injuries on the dead body:

1. Abrasions on the posterior aspect of right wrist region size 1 cm. X 0.5 cm.

2. Abrasions on the posterior aspect of right wrist 3 cm. above from injury No. 1 size 0.3 cm x 0.3 cm.

3. Contused lacerated wound in left eye lower orbit size 2.6 cm x 1 cm x 2 cm.

4. Abrasions on the neck right side size 1.3 cm x 0.8 cm.

13. On internal examination, the doctor found that there was extra

vasation of blood in the neck tissue which was corresponded with the

ante-mortem injury No. 4. There was fracture of thyroid. In the

opinion of the doctor, cause of death was due to manual strangulation

whereas injury No. 1 and 2 were caused by sharp pointed object like

broken pieces of glass bangles and injury No. 3 were caused by blunt

force application. Time since death was 3½ days. The Post- mortem

report was Ex.PW9/A.

14. The appellant, when examined under Section 313 Cr.P.C.,

claimed innocence. He came out with an explanation that his son Anuj

Kumar was studying in UKG in Meerut Public School, who had fallen

sick. Thus he went to see his ailing son in Meerut in the evening of

13.03.92. He stayed there overnight and returned for Delhi in the

morning of 14.03.92. When he reached at his home at around 9:30 to

9:45 pm, police was already present at his house. Public person had

also gathered there. Police took him to the Police Station and in the

evening he was arrested and falsely implicated in this case.

15. To prove his defence, appellant examined his aunt Saroj Bala

(DW1). She deposed that Anuj, son of the appellant, was a student of

Meerut Public School in the years 1990-92 and was living with her at

Meerut. On 13.03.92, Anuj developed the problem of loose motion so

she rang up the appellant and called him to Meerut. Appellant reached

her residence in the night of 13.03.92 at around 9:00/9:30 pm and he

stayed there for two nights and left Meerut in the morning of 15.03.92

at 7:30 am. She stated that Anuj for his aforesaid ailment was under

treatment of one Dr. Anand. In the cross-examination by learned APP,

she stated that Dr. Anand had given prescription for medicine

prescribed to Anuj but she has not brought the same. She denied the

suggestion that she has made a false statement to help her brother.

16. The learned trial Judge on consideration of the evidence did not

find any merit in the plea of alibi and relying upon the prosecution

evidence, he found the appellant guilty of the murder of his wife and

convicted him on the charge under Section 302 IPC.

17. Case of the prosecution is based upon the circumstantial

evidence. On perusal of the impugned judgment, it transpires that the

learned trial Judge has found the appellant guilty of charge under

Section 302 IPC on the strength of following incriminating

circumstances found firmly established by the prosecution:

(i) That accused with his wife deceased Babli was living in a tenanted house, forming part of House No.P-161 Village Pillangi and that body of Babli was recovered from there. She was found dead in unnatural manner in the morning of 15/3/92.

(ii) Presence of the accused near the place of crime and his meeting with the witnesses of the prosecution before the arrival of the police at that place. The police arrived there at about 7:30 am on 15.03.92.

(iii) Mis-leading statements of the accused to the witnesses of the prosecution and his conduct.

(iv) Motive on the part of the accused to commit the crime.

(v) Unreliable defence of the accused that he was away from Delhi in the night intervening 14/15.03.92 and that he came to his house at about 9:45 am on 15.03.92. The defence of alibi is not proved.

18. Since the case is based upon circumstantial evidence, it would be

appropriate to have a look on the law relating to the circumstantial

evidence before adverting to the submissions made by the rival

parties. In the matter of Padala Veera Reddy v. State of A.P.,

1989 Supp (2) SCC 706, it was laid down by the Supreme Court that

when a case rests upon circumstantial evidence, such evidence

must satisfy the following tests:

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

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

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

19. The above enunciated principle of law was reiterated in the

matter of State of U.P. v. Ashok Kumar Srivastava, (1992) 2

SCC 86, where the Supreme Court, inter alia, observed thus:

"9. This Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt."

20. Learned counsel for the appellant while assailing the impugned

judgment has not disputed the existence of circumstance No.(i) found

to have been established by the learned trial Judge.

21. As regards circumstance Nos.(ii) and (iii) referred to above,

learned counsel for the appellant submitted that in order to establish

the said two circumstances, the prosecution was required to establish

that the appellant was present at the spot of occurrence on the night

intervening 14-15/03/1992 and in order to prove this fact, the

prosecution has examined three witness namely PW2 Inder Raj Ahuja,

PW3 Jaipal Singh and PW5 Satbir. Out of them, PW2 and PW3 are

hostile witnesses and they have not supported the case of prosecution.

As regards PW5, learned counsel for the appellant has submitted that

he has been held to be unreliable in respect of his testimony regarding

extra-judicial confession made by the appellant in his presence.

Therefore, it is not safe to rely upon his testimony regarding the

appellant having met him at the factory of PW2 Inder Raj Ahuja in the

morning of 15.03.1992 at around 05:30 or 06:00 a.m. Learned counsel

further submitted that once it is concluded that the testimony of above

three witnesses in respect of circumstances no. (ii) and (iii) is not

reliable, there is nothing left in the case to fix responsibility of murder

on the appellant. Besides the above arguments, learned counsel for

the appellant has also referred to the defence taken by the appellant in

his statement under Section 313 Cr.P.C. to the effect that on the

relevant night, he was not in Delhi but in Meerut as also to the

testimony of his aunt DW1 Saroj Bala and submitted that from the

aforesaid evidence, it stands established that the appellant could not

have murdered his wife Babli on the night intervening 14th and 15th

March, 1992 as he was in Meerut from the evening of 13.03.1992 till

the morning of 15.03.1992, when he reached back home from Meerut

at around 09:00 or 09:30 a.m.

22. We are hardly convinced with the aforesaid arguments. In order

to prove the defence of alibi, the appellant has examined his aunt DW1

Saroj Bala. She has stated that the appellant‟s son Anuj was a student

of Meerut Public School in the years 1990-1992. On 13.03.1992, Anuj

was ailing and suffering from loose motions, therefore, she telephoned

the appellant and called him to Meerut. Pursuant to the telephone call,

the appellant reached Meerut on the night of 13.03.1992 at around

09:00-09:30 p.m. and stayed with her till the morning of 15.03.1992

when he left for Delhi at around 07:00 or 07:30 a.m. She also stated

that Anuj was under treatment of Dr. Anand. We are not inclined to

believe the oral testimony of DW1 Saroj Bala, firstly because neither

Dr. Anand has been examined nor medical prescription for the

treatment of Anuj is placed on record, despite of the fact that DW1

stated in her cross-examination that the doctor had written a medical

prescription. Secondly, the appellant could have easily summoned the

record from the school of his son to establish that Anuj, at the relevant

time was studying at Meerut Public School, but no such record has

been produced. In absence of any corroborative evidence, oral or

documentary, on the record, we are not inclined to believe the

testimony of DW1 Saroj Bala, who is the aunt of the appellant and has

an interest to save him.

23. Coming to the prosecution evidence regarding circumstances No.

(ii) and (iii), we may note that PW2 Inder Raj Bahadur, PW3 Jaipal Singh

and PW5 Satbir, as propounded by learned counsel for the appellant,

are not the only witnesses to prove that the appellant was in Delhi on

the relevant night. PW15 SI Jeewan Kumar, who conducted initial

investigation of this case, has stated that on 15.03.1992 at around

07:15 a.m., on the receipt of the copy of DD No. 9A regarding the

incident, he alongwith Constable Ramesh Chand (PW10) proceeded for

the spot of occurrence i.e. House No. P-161, Village Pillangi, Sarojini

Nagar. On the way, they met PW3 Jaipal Singh. When they reached

near the corner of House No. P-161, Village Pillangi, PW3 Jaipal pointed

towards the appellant, who was running away in the gali and told that

he was the husband of the lady murdered by him. PW3 Jaipal and

Constable Ramesh Chand ran after him and caught hold of him. PW10

Constable Ramesh Chand has also corroborated his version by

deposing to almost similar effect. The appellant has not cared to

cross-examine and controvert the testimony of PW10 Constable

Ramesh Chand. Therefore, his version regarding apprehending of the

appellant in the morning of 15.03.1992 in the gali near the house in

question is deemed to have been admitted as correct. Not only this,

PW2 Inder Raj Ahuja, employer of the appellant, who turned hostile on

several aspects of this case, has testified that four or five days prior to

the „Holi‟ of 1992, the appellant had visited him in the morning at

around 07:00 or 07:30 a.m. and told that someone in the house was

sick and was vomiting and he advised the appellant to take said person

to Safdarjung Hospital. No doubt, PW2 Inder Raj Ahuja has not given

the specific date, yet one cannot ignore the fact that „Holi‟ in the year

1992 fell on March 19th and 4/5 days prior to „Holi‟ could easily be 15th

March, 1992. The above version of PW2 stands corroborated from the

version of PW5 Satbir when he stated on oath that 5/6 days prior to

„Holi‟ of 1992 at around 05:30 or 06:00 a.m. in the morning, the

appellant visited him at the workshop M/s. Ahuja Funiture House and

requested him to go and call his father as his wife Babli had died,

which version obviously implies that the appellant, after the death of

Babli, had gone to the factory of PW2 where he requested PW5 to go

and call his father. From the above referred evidence, we are left with

no iota of doubt that the appellant was very much present in Delhi on

the night intervening 14/15th March, 1992 during which night his wife

Babli died a homicidal death, and that he had taken a false plea of

alibi.

24. PW3 Jaipal Singh, though he is hostile on certain aspects of this

case, he testified in his examination-in-chief that he had not seen the

deceased being removed by the appellant with the help of his father

and other persons but the police came before the removal of Babli

(deceased) from the room in question. He also testified that the

appellant told them that Babli had died of Cholera. This version of PW3

also corroborates the version of PW2 Inder Raj Ahuja that on the fateful

morning, the appellant visited him and told that "someone in his family

was sick and vomiting", which is a symptom of cholera. Thus, the

evidence of PW2, PW3 and PW5 read together is sufficient to conclude

that the appellant was not only present at the spot of occurrence in

Delhi on the fateful night but that he also made a misleading

statement about the cause of death of the deceased.

25. Learned counsel for the appellant submitted that the learned

Trial Court has erred in placing reliance upon the testimony of PW2

Inder Raj Ahuja about the visit of the appellant to his workshop on the

fateful morning and informing him that someone in his house was sick

and vomiting and also testimony of PW3 Jaipal Singh that the appellant

told them on the fateful morning that Babli (deceased) had died

because of Cholera, ignoring the fact that both of them were declared

hostile and cross-examined by the learned Prosecutor.

26. We do not find merit in the above contention. The law relating to

the evidence of a hostile witness is well-settled. There is no rule of law

that the testimony of a witness has to be rejected in toto for the reason

that he/she was declared hostile at the request of the prosecution. In a

criminal trial, it is the obligation of the court to find the truth and make

an endeavour to separate grain from the chaff. It is well-settled that

even in case of a hostile witness, if some part of his testimony is found

reliable and dependable, the court can make use of such testimony to

arrive at a just finding. In our aforesaid view, we find support from the

judgment of the Supreme Court in the matter of Radha Mohan Singh

Vs. State of U.P., (2006) 2 SCC 450 and Keshoram Bora Vs. State

of Assam, AIR 1978 SC 1096. In the instant case, though PW2 and

PW5 were declared hostile at the request of the learned prosecutor, we

find no reason to suspect the correctness of their version regarding the

visit of the appellant to the workshop of PW2 Inder Raj Ahuja in the

morning of 15.03.192 and that he told PW2 that someone in his family

was sick and vomiting and also the testimony of PW3 Jaipal Singh to

the effect that the appellant stated on the fateful morning that Babli

has died because of cholera. Thus, we do not find any infirmity in the

conclusion of the learned trial Judge that the appellant gave misleading

statements about the cause of death of his wife Babli to the witnesses.

27. It was further submitted on behalf of the appellant that this is a

case of unfair investigation. Learned counsel drew our attention to the

testimony of PW3 Jaipal, PW10 Constable Ramesh Chand and PW15 SI

Jeewan Kumar and submitted that if their version is to be believed,

then the appellant was apprehended in the morning of 15th March,

1992 when he was trying to escape and in that eventuality, his arrest

should be somewhere around 07:30 a.m. in the morning whereas as

per the prosecution, he was formally arrested on 15th March, 1992 at

4.30 p.m. He has also submitted that even the FIR in this case

appears to have been ante-timed as the copy of the special report, as

per the endorsement on the copy of the FIR Ex.PW1/B, was received by

the concerned Metropolitan Magistrate at 07:15 p.m. on 15th March,

1992. From this circumstance, learned counsel has strongly urged

us to infer that the Investigating Agency has not conducted the

investigation fairly and falsely implicated the appellant after due

deliberation to solve a blind case.

28. The learned Additional Sessions Judge, while dealing with this

contention has observed thus:

"...... During the course of argument, I went through the police file and found special Form No. 25.5 (1) in that file. In that Form, the arrest of the accused has been shown 04:30 p.m. on 15.03.1992. There is no doubt that the accused was apprehended by the police at about 7.30 AM on 15.3.92. However, it is not the case of the prosecution that the accused was formally arrested immediately. If it would have been so then SI Kulwant Singh must have so mentioned in his endorsement Ex. PW16/A which he made on the complaint of Jaipal Singh which is Ex.PW1/A . It appears that accused was formally arrested in the afternoon of 15.3.92. It does not establish that accused was not present and available to the police at 7.30 AM on 15.3.92 as concluded above.

48. PW1 SI Sanjay Singh was posted as Duty Officer at Police Station Viney Nagar and recorded the F.I.R. of this case at about 9.45 AM on 15.3.92. He has denied the suggestion of the accused that the FIR was recorded at later stage and the daily diary register was kept in abeyance till the registration of the case. The F.I.R. No. 111 and 112 of 1992 were recorded on 12.3.92 and 13.3.92 and the same have gone untraced. Statement of PW 10 Constable Ramesh Chand, which has gone unrebutted further confirms that he had taken the ruqqa to the Police Station and got registered the case through PW1. SI Kulwant Singh has denied that the FIR is ante time. In the circumstances, I do not find any force in the contention of the learned defence counsel that the FIR was recorded later on as per convenience of the police. Though as per endorsement of the learned M.M., the copy of the FIR Ex.PW1/B was received by him at 7.15 PM on 15.3.92 yet in the given circumstances I do not find any evidence to hold that the delay in handing ever the copy of the FIR to area Magistrate was because of recording of the F.I.R. at a later stage and not at about 9.45 AM on 15.3.92."

29. We do not find any infirmity in the approach adopted by the

learned Additional Sessions Judge while rejecting this plea. We may

also add that there is no anomaly in the testimony of PW3, PW10 and

PW15 regarding the time of apprehending of the appellant and the

time of the formal arrest of the appellant. One cannot lose sight of the

fact that apprehending of a person on suspicion and his formal arrest

are two distinct steps in the investigation. There is nothing wrong if

the Investigating Officer did not formally arrest the appellant though

he was detained on suspicion till he was satisfied about the

involvement of the appellant in the murder of his wife.

30. Learned counsel for the appellant has submitted that in a case

based upon circumstantial evidence, motive for committing the offence

acquires greater significance. In this case, the prosecution has failed

to establish the motive on the part of the appellant to kill the

deceased. Learned counsel submitted that the testimony of PW7

Rakesh Kumar, PW8 Harpal Singh and PW11 Ram Swaroop, i.e., the

brothers and father of the deceased refer only to the past incidents

and they have not stated about any discord or quarrel between the

appellant and the deceased in the recent past. He also pointed out

that even as per testimony of PW5 Satbir, the appellant and the

deceased had compromised their dispute and the appellant had

brought her to Delhi. In view of the above, learned counsel has

strongly urged us to infer that there was no motive on the part of the

appellant to kill the deceased and extend benefit of doubt to him.

31. PW11 Ram Swaroop, father of the deceased and her brothers

PW7 Rakesh Kumar and PW8 Harpal Singh have stated in categoric

terms that sometime after the marriage, the appellant had started

demanding dowry from them. They referred to some incidents of

demand and stated that on one occasion, Rs.3000/- was paid to the

appellant to satisfy his demand. Even thereafter a demand of

Rs.15,000/- was again made by the appellant for purchase of bus, but

it was not conceded because father of the deceased, on inquiry from

the neighbours of the appellant, found that the appellant had no

intention to purchase a vehicle. Consequently, the appellant became

angry and sent the deceased to her parental home. The witnesses also

deposed that the deceased had even filed a suit for maintenance

against the appellant, which was ultimately compromised. From the

aforesaid evidence, it is established on record that things were not well

between the appellant and the deceased because of the greed and

desire of the appellant for dowry and even in the past, the parties had

undergone litigation for maintenance of the deceased. This in itself is

sufficient to infer the motive on the part of the appellant to get rid of

the deceased. Merely because a compromise was arrived at between

the parties in the civil litigation for maintenance, it cannot be said that

the acrimony between the parties had actually come to an end and

that the appellant was not nursing a grudge against the deceased

because of past episodes. Thus, we do not find any infirmity in the

conclusion of the learned Trial Court that even the motive on the part

of the appellant has been established.

32. Lastly, it is submitted on behalf of the appellant that one of the

incriminating circumstances relied upon by the prosecution in the

charge sheet was the purported extra judicial confession made by the

appellant in presence of PW5 Satbir. Learned counsel has submitted

that the evidence of Satbir regarding extra judicial confession has been

rejected by the learned Trial Court which implies that a very important

link in the chain of circumstances leading to inference of guilt of the

appellant has broken, which entitles the appellant to the benefit of

doubt.

33. We are unable to accept the argument. The failure of the

prosecution to prove extra judicial confession made by the appellant,

in our view, is of no avail to the appellant because the prosecution, in

view of the discussion above, has been able to establish the five

incriminating circumstances detailed hereinbefore in para 17 of the

judgment, which is sufficient to draw an irrefutable inference of the

guilt of the appellant.

34. To summarise the conclusion, it stands firmly established that

the appellant was living with the deceased in a room in House No. P-

161, Village Pillangi. The deceased died on the night intervening 14

and 15th March, 1992. Since the appellant alone was residing with the

deceased in the said room, the appellant alone could have known as to

what happened on the fateful night which resulted in death of Babli.

Instead of coming out with a cogent explanation for the same, the

appellant opted to give misleading information, as stated by PW3 Jaipal

Singh, that Babli died because of Cholera, which fact is belied by the

post-mortem report Ex.PW9/A wherein the cause of death has been

opined as manual strangulation. He also tried to set up a false plea of

alibi, which squarely points towards his culpability and there is even

evidence of motive to kill the deceased on his part. The cumulative

effect of these circumstances leads to one and only conclusion that the

appellant is solely responsible for the murder of the deceased, there

being no other plausible theory which may point towards his

innocence. Thus, in our view, the learned Trial Judge has rightly

convicted the appellant under Section 302 IPC.

35. We do not find any merit in this appeal. It is accordingly

dismissed.

36. The appellant is absconding. SHO of the concerned police station

and the concerned Court are directed to take steps for his arrest, so

that he can be sent to Jail for undergoing the remaining sentence.

AJIT BHARIHOKE, J.

MARCH 22, 2010                                A.K. SIKRI, J.
akb/pst