Smt. Guddo @ Sonia vs State
2011 Latest Caselaw 2450 Del

             THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment delivered on: 09.05.2011

1.           CRL.A. 621/2009

SMT. GUDDO @ SONIA                                                ..... Appellant

                                         versus

STATE                                                           ..... Respondent

Advocates who appeared in this case:

For the Appellant        : Mr Ashwani Vij.
For the Respondent       : Ms Richa Kapoor, Addl. Standing Counsel.

                                         AND

2.           CRL.A. 39/2010

SATPAL                                                            ..... Appellant

                                         versus

STATE (NCT) OF DELHI                                            ..... Respondent
Advocates who appeared in this case:
For the Appellant        : Mr. A.J. Bhambhani with Ms Nisha Bhambhani, Ms Sonia Raina
                           and Mr Victor A.
For the Respondent       : Ms Richa Kapoor, Addl. Standing Counsel.


CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE MANMOHAN SINGH

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

MANMOHAN SINGH, J

1. These two appeals are directed against the judgment dated

24.07.2009 and order on sentence dated 29.07.2009 delivered by the Addl.

Sessions Judge, Delhi in Sessions Case No. 172/2008 whereby both the

appellants were directed to undergo rigorous imprisonment for life and further

sentenced to pay a fine of Rs. 2,000/- each under Section 302 IPC and in case

of default in payment of fine to further undergo simple imprisonment for two

months each for committing the murder of Manoj Kumar (hereinafter referred

to as the deceased) husband of Smt. Guddo @ Sonia who is the appellant in

Criminal Appeal No. 621/2009. The appellants were further directed to

undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/- each

under Section 120 B IPC and in case of default of payment of fine, to further

undergo simple imprisonment for two months each. Both the sentences were

directed to run concurrently.

2. The case of the prosecution was that a DD No. 6 A was received

at PS Uttam Nagar that one person was lying in an injured condition at Gali

No.2, Vikas Nagar. On receipt of the said DD No. 6A, ASI Raj Kumar along

with WSI Indrawati Rathore, ASI Mamor Khan and Inspector Ishwar Singh

reached the spot i.e. House No. R-45, R-Block , Vikas Nagar where

complainant Guddo @ Sonia was present and she told the police officials that

her husband Manoj Kumar was lying dead inside her house.

3. Thereafter, the statement of Guddo @ Sonia was recorded by the

police wherein she stated that she was residing at the aforesaid address along

with her children and husband. Her husband used to do repair work of old

sewing machines and on 23.09.2004 at around 7.30 am, she had gone to leave

her younger daughter Jyoti to the school, when she came back her husband

was doing some repair work and he told her to call Rakesh Baba from Tillang

Pur, Kotla Village as he had some urgent work with him. Thereafter, she went

to the house of aforesaid Rakesh Baba by locking the door of their house.

After reaching there she told him that her husband was calling him. She along

with Rakesh Baba returned to their house at 9.40 am. When she opened the

door of her house and went inside, she raised an alarm that „BABA MERE

PATI KO BACHAO‟. Thereafter, the said Rakesh Baba went inside the

house along with her and both of them saw that Manoj Kumar, husband of the

complainant, was lying dead in a pool of blood on the floor inside the room.

Then Rakesh Baba told her that they should inform the police but she stated

that police should not be informed. But in the meantime somebody informed

the police.

4. The police reached there and prepared ruqqa on the statement of

the complainant. On the basis of the said ruqqa an FIR No. 826/2004 under

Section 302 IPC was registered. The dead body was sent for postmortem at

DDU Hospital. Rakesh Baba and Nisha, the elder daughter of the deceased

were interrogated. However, their statements were different from that of the

complainant Guddo @ Sonia and therefore a suspicion was raised towards

her.

5. Guddo @ Sonia was again interrogated on 24.09.2004 and Rakesh

Baba and Baby Nisha were also interrogated again. Thereafter, Guddo @

Sonia was arrested and made a disclosure statement.

6. Pursuant to the disclosure statement, appellant Guddo @ Sonia

got recovered one pocha and towel, stained with blood, from the parchatti of

her house, which were seized. And also pursuant to her disclosure statement,

the other appellant Satpal was apprehended at G.T. Karnal Road bypass

between 8/8.30 p.m. and arrested. He made a disclosure statement and got

recovered an iron pipe from Sinola picket, near Najafgarh drain which was

seized by the police. The blood stained clothes, which he was wearing, were

also seized.

7. We have heard learned counsel for the parties and have carefully

and meticulously gone through the trial court record. In the present case there

is no eye witness or direct evidence. The case of the prosecution is based

upon the circumstantial evidence, inter alia, comprising of the testimony of

PW-5 Nisha, daughter of Guddo @ Sonia and PW-2 Rakesh Baba.

8. The following circumstances were alleged by the prosecution

against the appellants:

1. Appellant Satpal was a tenant in the house of the deceased

Manoj and appellant Guddo @ Sonia.

2. Appellant Satpal was seen in the lap of appellant Guddo @

Sonia and was having illicit relations with her.

3. Deceased Manoj was last seen by PW-5 Nisha at 7.15 a.m. in

the company of appellant Satpal and appellant Guddo @ Sonia

before she left for school while taking breakfast, when the

appellant Satpal was sitting on the chair, whereas deceased

Manoj was sitting on the ground, which shows preferential

treatment to the appellant Satpal by appellant Guddo @ Sonia

and also provides motive to eliminate deceased Manoj due to

their illicit relations.

4. Appellant Guddo @ Sonia went to call PW-2 Rakesh Baba,

stating that gundas had come to kill her husband by locking the

door of her house.

5. She opened the door with her key and found her husband Manoj

dead and appellant Satpal was found nowhere at that time.

6. She told PW-2 Rakesh Baba not to lodge a complaint with the

police and later when he inquired about Satpal, she told him that

Satpal had left the house at 5.30/6 a.m.

7. The appellant Guddo @ Sonia tried to create a false defence by

making a wrong complaint to the police Ex. PW15/A.

8. On interrogation the appellant Guddo @ Sonia made a

disclosure statement and got recovered a pocha and towel

pursuant to her disclosure statement.

9. Appellant Guddo @ Sonia got Satpal arrested from G.T. Karnal

Road, bypass on 24.09.2004.

10. After the interrogation and arrest, appellant Satpal made a

disclosure statement to the police which led to the recovery of

the weapon of offence i.e. iron pipe, which was hidden by him

near Najafgarh drain and also his blood stained clothes, were

seized by the police.

11. The postmortem report duly corroborates the injury caused on

the body of the deceased Manoj by the said weapon of offence

and also the subsequent opinion of the doctor, who had

conducted the postmortem and the FSL report corroborates the

prosecution story.

9. The prosecution in support of its case has examined 19 witnesses.

PW-1 is Ramesh Kumar (uncle of the deceased), PW-2 is the star witness,

Rakesh Kumar @ Baba, PW-3 is Hargayan Singh, Pardhan of R-Block,

Vikas Nagar, Uttam Nagar, PW-4 is Rajesh Kumar, father of the deceased,

PW-5 is Nisha, elder daughter of the deceased and the another star witness,

PW-6 is SI Manoj Kumar of the mobile crime team, PW-7 is HC Surender

Kumar Tyagi, photographer of the crime team, who has proved the

photographs taken by him, which are 19 in number, which are collectively Ex.

PW-7/A1 to A19 and the negatives are Ex. PW7/B1 to B19.

10. PW8 is WHC Seema, the duty officer, who had recorded the

relevant DD entries and proved the copy of the FIR Ex. PW-8/E, PW-9 is HC

Banwari Lal, who was the MHC(M) during the relevant period i.e. between

23.09.2004 and 22.11.2004, with whom various sealed parcels were

deposited by the I.O. during the investigation(s) of the case and who had also

sent the exhibits of this case to CFSL, Hyderabad for forensic opinion, PW-

10 is HC Hattu Ram, who has proved the PCR form by virtue of which the

initial call was received at 100 number at police control room. He has proved

the PCR form as Ex. PW-10/A, PW-11 is Ct. Manbir, the formal witness,

who was working as special messenger at PS Uttam Nagar on 23.09.2004

and who had delivered the copy of the FIR to the senior officers, PW-12 is

Ct. Devender Kumar, who had got the FIR registered on the basis of the

ruqqa Ex. PW-8/C, recorded by the I.O. and who had also later on joined the

investigation of this case on 24.09.2004 and was present, when accused

Guddo @ Sonia was arrested and made her disclosure statement and got the

other accused Satpal arrested and was also present when the other appellant

Satpal got the iron pipe recovered.

11. PW-13 is Ct. Azad Singh, who took the dead body of the

deceased on 23.09.2004 from his house to DDU Hospital mortuary and who

on 22.04.2004 deposited various exhibits of this case with CFSL, Hyderabad.

PW-14 is SI Mahesh Kumar, the draftsman, who has proved the scaled site

plan, prepared by him, which is Ex. PW-14/A. PW-15 is SI Mamor Khan,

who took active part in the investigation and in whose presence accused

Guddo @ Sonia had made disclosure statement and got one pocha and towel

recovered from her house and who was present when she got the other

accused Satpal arrested and was also present when the other accused Satpal

got the weapon of offence i.e. iron pipe recovered. PW-16 is Inspector

Indrawati Rathore, who also took active part in the investigation(s) as was

taken by PW-15 SI Mamor Khan, PW-17 is Dr. B.N. Mishra, Medical

Officer, DDU Hospital, who has proved the postmortem report of deceased

Manoj. He stated that the postmortem was conducted by the Dr. N.M.

Naranaware, who had since expired and he has proved the postmortem report

prepared by said doctor as Ex. Pw-17/A and the subsequent opinion given by

him, regarding the weapon of offence as Ex. PW-17/B.

12. PW-18 is Inspector Bhagwan Singh, who also took active part in

the investigation(s), as was taken by PW-15 SI Mamor Khan and PW-16

Indrawati Rathore, PW-19 is ACP Ishwar Singh (retired), the I.O. of the

present case, who has deposed regarding the entire investigation, as was

carried out by him during the course of the present case.

13. The trial court by its judgment found both the appellants guilty for

the murder of the deceased Manoj with common intention and passed a

sentence of imprisonment for life and further sentences as referred earlier

because of the following reasons:

i. Appellant Satpal was residing as a paying guest in the house of the

deceased Manoj where he had developed illicit relations with the wife

of the deceased who is another appellant in the case, namely, Guddo @

Sonia. He was seen sitting in the lap of the appellant Guddo @ Sonia

by PW-5 Nisha and both the appellants were last seen together with the

deceased at 7.15 a.m. on 23.09.2004.

ii. Appellant Guddo @ Sonia went to PW-2 Rakesh Kumar @ Baba with

the complaint that he should accompany her to her house as three

gundas have come to kill her husband and when PW-2 Rakesh Baba

along with appellant Guddo @ Sonia reached the house of the

deceased, the entry gate was opened by the appellant Guddo @ Sonia

with her own keys and at that time Manoj was found dead by the

appellant Guddo @ Sonia who raised an alarm and, thereafter, she

made a false complaint/statement to the Police Exhibit PW-15/A in

which she concocted a false story and mislead the police.

iii. Further when PW-2 Rakesh Kumar @ Baba enquired about the

accused Satpal, she replied that he had already left her house at about

5.30/6 a.m. and did not return to their house on the said date or the

next day. Later on as per the disclosure statement of Guddo @ Sonia,

accused Satpal was arrested from G.T. Karnal Road bypass on

24.09.2004.

iv. Thereafter, the Police recovered the weapon of offence which was an

iron pipe from the bushes near Nazafgarh drain on the pointing out of

the accused Satpal. He was also found wearing the blood stained

clothes and the blood group on the clothes matched with that of the

deceased Manoj as per the opinion of the doctor who conducted the

postmortem.

14. For the aforesaid reasons, the trial court came to the conclusion

that inference can be drawn against both the appellants to have committed the

murder of the deceased Manoj with the common intention/agreement to

remove him from their way due to their having illicit relations with each other

and, therefore, prosecution was able to prove the case beyond reasonable

doubts and also proved the offence of criminal conspiracy as defined under

Section 120A IPC punishable under Section 120B IPC against both the

appellants.

15. The case of the prosecution under Section 201 IPC was rejected

by the trial court on the findings that the prosecution failed to prove that the

appellants had caused disappearance of any evidence i.e., „Pocha‟ and

„towel‟ which were allegedly used to wipe out the blood of the deceased from

the floor of the house.

16. The learned counsel appearing on behalf of accused Guddo @

Sonia has argued that there is no evidence pertaining to the conspiracy of

murder of deceased and the prosecution has also failed to establish the motive

as it is clear from the evidence of PW-3 Hargyan Singh that when he told the

deceased that his wife was having illicit relations with Satpal the deceased

did not pay heed to it. This shows that the prosecution has failed to establish

the motive of the murder. It has also been argued by the learned counsel for

the appellant Guddo @ Sonia that PW-5 Nisha was an interested witness in

the present case and is a child witness and came to depose before the Court

from the custody of her paternal grandfather. PW-5 also made several

improvements in her statement before the Court. If PW-5 was a natural

witness to the alleged incident then her statement ought to have been

recorded on the date of occurrence itself. Therefore, the prosecution has also

failed to establish its case beyond reasonable doubts against appellant Guddo

@ Sonia.

17. Let us first deal with the submission of the learned counsel

appearing on behalf of accused Guddo @ Sonia. Admittedly, PW-5 Nisha

who is the daughter of the accused Guddo @ Sonia, has deposed that on the

date of occurrence when she left for school at around 7 a.m. accused Satpal

was taking his breakfast, which had been cooked by her mother, while sitting

on a chair and at the same time her father was also taking breakfast while

sitting on the floor. This testimony of PW-5 has remained unrebutted in cross-

examination. It is a matter of fact that when she left for school on the date of

occurrence she had seen her father in the company of both the appellants

while they were taking breakfast. Testimony of PW-2 Rakesh Kumar @

Baba is also relevant and he has deposed that he knew both the accused as

well as the deceased husband of accused Guddo @ Sonia. He further

deposed that on the date of occurrence i.e., on 23.09.2004 at 9 a.m. appellant

Guddo @ Sonia came to his house and requested him to save her husband as

three gundas have come to kill her husband. She told him that she had come

to him after locking her husband Manoj in a room however, she stated that

she had not seen any of the three gundas. She also made a telephone call

from his house. Thereafter she along with Rakesh Baba left for her house on a

two-wheeler scooter and Guddo @ Sonia opened the entry gate of her house

with the keys which she was having with her and walked into the innermost

room of her house and after unlocking the door of the same cried "MANOJ

KO BACHA LO". Thereafter, on hearing her cries, some neighbours also

came there and thereafter he along with those neighbours saw the dead body

of Manoj, which was lying on the floor next to the double-bed in the

innermost room of her house.

18. In her statement under Section 313 Cr.P.C., appellant Guddo @

Sonia stated that she had been falsely implicated in this case at the behest of

interested witnesses and police officials. According to her- "on 23.09.2004, I

left my daughter Nisha to the school at about 7:00 a.m. in the morning and

when I came back to home, I saw my husband lying in the pool of blood. I

called Rakesh Baba who is a friend of my husband to my home and on my

request the police was called and the police took my signature on some blank

papers and I was kept in one room of my home and later on in the evening I

was taken to the PS and after that I was produced before the court and since

then I am in judicial custody".

19. The said statement made by the accused Guddo @ Sonia under

Section 313 Cr.P.C. is not in consonance with the evidence of PW-2 Rakesh

Kumar @ Baba and that of PW-5 Nisha (her real daughter) as PW-5 Nisha

has categorically stated that she had last seen her father in the company of

both the accused persons alive while they were having breakfast when she

left for school at 7.15 a.m. Similarly, PW-2 Rakesh Baba has deposed that

when Guddo @ Sonia came to her house on the date of incident at 9 a.m. she

informed that Manoj is in danger as three gundas have come to kill him and

she has come to him by locking the door from outside.

20. As per the version of Guddo @ Sonia recorded by the police, her

husband was alive when she came to the house of PW-2 Rakesh Kumar @

Baba at 9 a.m. or thereabouts, but was found dead when she returned to her

house with PW-2 Rakesh Kumar @ Baba and opened the door with her own

keys. It appears that she had given a false version in her statement under

Section 313 Cr.P.C. and tried to create a false defence by making an incorrect

complaint exhibit PW-15/A to the police on the basis of which the FIR was

lodged in which a different version of her statement has come wherein she

has stated that when she returned at 7.30 a.m. to her house after leaving her

daughter Jyoti to the school, her husband Manoj was trying to convert the

bucket into angithi and her husband told her to call Rakesh Baba from Tilang

Pur, Kotla Village.

21. As per her version, after locking the door from outside she went to

the village and later on she along with PW-2 Rakesh Baba came back to the

house at 9.40 a.m. when she opened the door with her own keys, she found

her husband dead. Admittedly there was no other entry gate in the house. It

appears that she had tried to create a false story by making a wrong complaint

to the police exhibit PW-15/A which goes against her and the same shows

the unnatural conduct of the appellant Guddo @ Sonia after the commission

of the crime to somehow wriggle out of the same.

22. It is a well established legal principle that in a case based on

circumstantial evidence where an accused offers a false explanation in his

statement under Section 313 Cr.P.C. in respect of an established fact, the said

false denial could supply a missing link in the chain of circumstances

appearing against him.

23. From the above discussion, following incriminating circumstances

appear against accused Guddo @ Sonia :-

(i) Accused Guddo @ Sonia tried to mislead the investigating agency regarding the murder of her husband, Manoj.

(ii) Accused Guddo @ Sonia did not give any explanation in respect of facts which were within her knowledge.

(iii) The conduct of accused Guddo @ Sonia was most suspicious at the time of the murder of the deceased and after the murder.

(iv) Accused Guddo @ Sonia gave false answers in her statement under Section 313 Cr.P.C.

24. 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 leading to any conclusion,

on a reasonable hypothesis, other than that of the guilt of the accused.

25. No doubt, the courts have also 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 each and every hypothesis put forward by the

accused however far-fetched and fanciful it may be.

26. In the decision reported as Rakesh Kumar v. State : 183 (2009)

DLT 658, a Division Bench of this Court 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.

27. In dealing with the argument advanced by the learned counsel for

the accused Guddo @ Sonia on the point of motive, the testimonies of PW-1

Ramesh Kumar and PW-4 Rajesh Kumar, father of the deceased, are also

relevant. PW-4 Rajesh Kumar in his testimony has deposed that deceased

Manoj was his son who married accused [email protected] Sonia against his wish.

He also deposed that he did not attend the said marriage nor he had thereafter

seen his son till he was dead. He deposed that he had knowledge that

accused Guddo @ Sonia had a daughter from her previous husband as per

information received from his deceased son Manoj. He also identified the

dead body of deceased Manoj.

28. PW-1 Ramesh Kumar further deposed that accused Satpal was

residing in the first floor of the house of his nephew Manoj as a tenant for the

last 6-7 months from the date of occurrence. He also deposed that about 5-6

months before the occurrence, deceased Manoj had informed him that his

wife Guddo @ Sonia was putting pressure on him for transferring house

property bearing no. R-45, Vikas Nagar, Near Uttam Nagar, Delhi where

they were residing in her name but deceased Manoj was not willing to do so.

He further deposed that when he had gone to the house of his nephew Manoj

about one month before the occurrence, he was not present in the house. His

wife Guddo @ Sonia and daughter Nisha (PW-5) were present. He further

deposed that PW-5 Nisha told him that accused Satpal, who was a tenant on

the first floor, was seen by her in a compromising position with the accused

Guddo @ Sonia. Though in cross-examination he was confronted with the

statement Ex. PW-1/DA where it was not so recorded. However, he

voluntered that he had so stated but police had not recorded the same. If we

read the testimony of PW-2 and PW-5 together with the statement of PW-1, it

appears to us that the deceased was an obstacle in her love life and she

wanted that the deceased should transfer the property in her name but Manoj

was not inclined to do so. This provided a motive to the accused Guddo @

Sonia to eliminate the deceased Manoj in order to further her alleged illicit

relations with accused Satpal. Further, it is also pertinent to note as to why

her own daughter would make a false statement against her.

29. It would be necessary to quote the following observations of

Supreme Court in the decision reported as State of UP v. Babu Ram : (2000)

4 SCC 515 :-

"11. 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 the 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 doubt, 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 investing 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 H. P. v. Jeet Singh. The following passage can be quoted from the latter decision:

"33. No doubt it is a sound principle to remember that every criminal act was done with a motive but 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.""

30. The following are the 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 appellant and can seldom be fathomed with any degree of accuracy".

31. In view of the above settled law, we do not find any merit in the

argument of the learned counsel that the case set up by the prosecution

against the appellant Guddo @ Sonia must fail on account of the alleged

failure of the prosecution to prove the motive of appellant Guddo @ Sonia.

The present case fits into the situation contemplated in State of H.P. v. Jeet

Singh (supra) where it was observed that "when the prosecution succeeded

in showing the possibility of some ire for the accused towards the victim, the

inability to futher 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

committ the offence cannot be construed as a fatal weakness of the

prosecution." This is so, because, in the present case the prosecution has

succeeded in demonstrating the possibility of there being a desire to eliminate

Manoj on the part of the appellant Guddo @ Sonia so that her path to Satpal

was clear.

32. For the aforesaid reasons and incriminating circumstances

appearing against accused Guddo @ Sonia, we are of the considered view

that accused Guddo @ Sonia is guilty of the murder of the deceased. Thus,

the appeal filed by her is liable to be dismissed.

Case of Satpal

33. Apart from the common grounds taken by both the appellants,

Satpal in his appeal has also challenged the impugned judgment as well as

order on sentence on the following additional grounds:

a) That the alleged weapon of offence, i.e., iron pipe alleged to

have recovered from the appellant is doubtful as there was

material contradiction in the prosecution version as PW-3

Hargyan Singh has stated that he was present when the said

"saria" was recovered but, PW-6 SI Manoj Kumar deposed

that no such "saria" or "iron rod" was ever recovered in his

presence whereas PW-16 Inspector Indrawati Rathore says

that the above "iron rod" was recovered from Najafgarh

drain. As such, the prosecution could not really connect the

same to the appellant.

b) That there is no direct evidence available on record to prove

that Satpal was a tenant in the house of the deceased and also

there is no direct evidence to prove that the deceased seen

the appellant with his wife Guddo @ Sonia in a

compromising condition.

c) That no public witness was ever called by the prosecution at

the time of arrest of the appellant or at the time of his

disclosure statement as well as at the time of recovery of

weapon of offence.

34. It is a settled law that the circumstances forming the evidence

must be conclusively established and even if, when so established they must

form such a complete chain that it is not only consistent with the guilt, but

inconsistent with any reasonable hypothesis of innocence.

35. It is the admitted case of both the defence and the prosecution that

it was the second marriage of Guddo @ Sonia with the deceased Manoj.

Regarding the tenancy of Satpal, the prosecution has relied upon the

testimony of PW-1 Ramesh Kumar, PW-2 Rakesh Kumar and PW-3 Hargyan

Singh and also the testimony of PW-5 Nisha.

36. As far as the case against the accused Satpal is concerned PW-5

Nisha, daughter of the deceased, had last seen both the accused persons

together in the morning and she is the witness of last seen evidence of the

presence of the deceased in the company of accused Guddo @ Sonia and

Satpal. She has also deposed that appellant Satpal was having illicit relations

with the appellant Guddo @ Sonia. The learned counsel for the respondent

has argued that appellant Satpal got effected the recovery of the weapon of

offence and his blood stained clothes after his arrest and the fact of throwing

away the weapon of offence was only in the knowledge of the accused.

37. PW-15 SI Mamur Khan, PW-16 Inspector Indrawati Rathor and

PW-18 Inspector Bhagwan Singh have deposed regarding the arrest of Satpal

from G.T. Karnal Road, Delhi Bypass on 24.09.2004. PW-16 and PW-18

have admitted that no public person was joined in the investigation at the time

of arrest of Satpal. After the arrest, he made a disclosure statement Ex.PW-

15/G and got recovered the weapon of offence, i.e., iron rod, from inside the

bushes of Najafgarh Drain, near Sanola bridge, which he had concealed there.

In his statement under Section 313 Cr.P.C., no explanation has been assigned

by Satpal as to how the said pipe was got recovered by him, barring his

denial. PW-16 and PW-18 have also deposed that at the time of arrest of

Satpal from G.T. Karnal Road Bypass, there were blood stains on his clothes

and the same were also taken into possession vide memo Ex.PW-15/1 i.e. a

pant and shirt, which he was wearing at the time of arrest and the same are

Ex.P7 and Ex.P8.

38. In the post-mortem of the deceased (Ex.PW-17/A), the following

injuries were found on his body:

"1. One lacerated wound seen behind left ear joint touching the pale of pinna, 2.5 cm from lobate of hte ear left & 2 cms from left mastoid process margins are abraded. K Contused size 2.5 cm x scalp deep.

2. One contusion seen an middle of left ear pinna 3 cms above left ear lobale & 5.5 cm from helix of left ear. Red coloured 0.7 x 0.7 cm.

3. One lacerated wound seen on left parietal occipital region placed vertically oblique, located at 18 cms from root of the nose &

12.5 cm from left ear helix. Margins are contused & abraded size 6 cms x 1 cm scalp deep.

4. One lacerated wound seen on right occipital region horizontally oblique, 9.5 cm from right mastoid & 11.5 cm from injury No.3.

Margins are abraded & contused size 5 cm x 1 cm scalp deep.

5. Lacerated wound seen on left occipital area, 7 cm from injury no.3 & 4.8 cm from injury No.4, vertically oblique size 4.1 cm x 1.1 cm x scalp deep margins are abraded & contused."

39. The cause of death had been opined by the doctor "death due to

head injury". He had also opined that all the injuries were ante-mortem in

nature. In his statement, PW-17 had specifically stated that the post-mortem

was conducted by Dr.N.M. Naranaware, who had expired and he was

conversant with the handwriting and signatures of Dr. N.M. Naranaware, as

he had worked with him during the course of his duties. PW-17 has also

stated that he had seen the opinion (Ex.PW-17/B) given by him regarding the

weapon of offence and as per the said opinion, the injuries mentioned in the

post-mortem (which is proved by PW-17 as secondary evidence) could have

been caused from the weapon of offence produced before him, which was got

recovered by Satpal from the bushes of Najafgarh Drain, near Sanola bridge,

as discussed earlier.

40. The contention of the learned counsel for Statpal is that since no

public person was joined at the time of recovery of the weapon of offence,

therefore, the said recovery is not believable. It is also stated that there are

many contradictions in the recovery of weapon of offence which are available

in the testimony of PW-3 Hargyan Singh, who in his cross-examination, has

stated that one Saria was taken by the police from the spot in his presence.

Similarly, in the cross-examination of PW-6 SI Manoj Kumar, he stated that

he could not tell whether any rod or other article was seized by the

investigating officer when he visited the spot on 23.09.2004.

41. We have examined the post-mortem report. It appears to us that

all the injuries were consistent to have been caused by a blunt weapon, i.e.,

iron pipe in this case and the same corroborates the story of the prosecution.

The nature of the injury found on the head of the deceased shows that it was

sufficient in the ordinary course of nature to cause death, as the same was

caused in the present case on the vital part of the body of human being, i.e.,

head. Even otherwise, there was no suggestion in the cross-examination that

the said injuries were not sufficient in the ordinary course of nature to cause

death. The time of death also corroborates the prosecution story as per the

material placed on record. The DD entry 6A (Ex.PW-8/A), coupled with the

statement of PW-2 Rakesh @ Baba, gives indication the proximate time

about the death given by the doctor.

42. The submission of the learned counsel for Satpal is without any

force, as the prosecution case had never been that any Saria was seized from

the accused person from the spot and as far as the statement PW-6 is

concerned, in fact, he simply stated that he did not know whether any rod or

any other article was seized.

43. In the case of State of Mahasrashtra vs. Suresh : (2000) 1 SCC

471, in para 26, the Supreme Court has held as under:

"26. We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was conceded by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act."

44. This judgment would apply in the facts and circumstances of the

present case, as the accused Satpal in his statement recorded under Section

313 Cr.P.C. failed to give any explanation as to how the said pipe was got

recovered by him. Therefore, the presumption regarding the recovery of the

weapon clearly goes against Satpal.

45. As far as recovery of a pant and shirt is concerned, as per

Ex.PW19/H, the examination report from CFSL, it is proved on record that

the said Ex.P7 and P8 were thoroughly examined by the chemical tests and

the result was that the blood was detected on Ex.P7 and Ex.P8 i.e. a pant and

shirt, which Satpal was wearing at the time of arrest. In fact no suggestion

was given in the cross-examination of PW-16 and PW-18 that the said blood

stained clothes were not seized from the accused Satpal or that the blood of

the deceased was not sprinkled on the said clothes by the Police. Rather, it is

clearly mentioned in the result that the blood group B was detected on Ex.P7

and Ex.P8 i.e. Pant and Shirt of Satpal. Further, Satpal, in his statement

recorded under Section 313 Cr.P.C., failed to explain anything as to how he

was found wearing the blood stained clothes having the blood of the deceased

as per the report of CFSL Ex.PW-19/H which corroborates the prosecution

story. The same was having blood group B which was also blood group of

the gauze piece of the deceased, samples of which were taken from the spot

by the investigating officer on 23.09.2004. Hence, it is clear that the blood

group of the deceased matched with the blood stains available on Ex.P7 and

Ex.P8, i.e., pant and shirt, which he was wearing at the time of arrest. Satpal

has failed to give any explanation as to how the said blood stained marks

were found on his clothes. Thus, that is a grave incriminating fact regarding

the culpability of the accused Satpal.

46. Regarding criminal conspiracy between the accused persons to kill

deceased Manoj, it is well settled law that there is no difference between the

mode of proof of offence of conspiracy and that of any other offence, it can

be established by direct or circumstantial evidence. In the present case,

from the conduct of the accused persons, coupled with the evidence of PW-1

to PW-5, the inference can clearly be drawn regarding the conspiracy to

commit the murder of the deceased. From the evidence of PW-1 to PW-5, it

has been established by the prosecution that Satpal was residing as a tenant in

the house of the deceased and he had developed illicit relations with the wife

of the deceased, who is another accused in the present case. PW-5 Nisha,

who is the real daughter of Guddo @ Sonia, had seen both Satpal and Guddo

@ Sonia together last time with the deceased at 7:15 a.m. on 23.09.2004

when she left for the school.

47. After having considered the evidence recorded in the matter, it is

clear that the prosecution has been able to establish that Satpal was residing

as a paying guest in the house of deceased Manoj along with Guddo @ Sonia.

PW-2 Rakesh Kumar @ Baba knew both the accused persons and also the

deceased husband of accused Guddo @ Sonia as both of them used to go to

one „Mazar‟ situated at Vikas Nagar for offering prayer.

48. Further, when Guddo @ Sonia and Rakesh @ Baba reached the

house of the deceased, the door of the entry gate was opened by Guddo @

Sonia with her own keys, at that time Manoj was found dead. When PW-2

Rakesh asked Guddo about the Satpal, she replied that he had already left her

house at 5:30/6:00 a.m. and he did not return to the house on the said day or

next day. After the disclosure statement, Guddo @ Sonia lead the Policy

party and got arrested Satpal at G.T. Karnal Road Bypass at about 8:30 p.m.

and Satpal got recovered the weapon of offence and also found wearing the

blood stained clothes which was having the blood of the deceased Manoj as

the blood stained clothes were matching with the blood group of the

deceased. The post-mortem report also opined that the injuries, found on the

body of the deceased at the time of conducting the post-mortem, could have

been caused by the said weapon. From these circumstances, an inference can

easily be drawn that both Guddo @ Sonia and Satpal, with the same object of

removing him from their way as the deceased was an obstacle in her love life

and Guddo @ Sonia also wanted her husband to transfer the property in her

name and the deceased was not inclined to do so, committed the murder of

deceased Manoj. We are of the view that the prosecution has been able to

prove the case under Section 120A IPC and both are punishable under

Section 120B IPC.

49. For the reasons given in the preceding paragraphs, we maintain

conviction of the appellant Satpal under Section 302 IPC and also maintain

the convection of both Guddo @ Sonia and Satpal under Section 120B IPC.

We agree with the judgment and order on sentence passed by the trial court.

The appeal filed by the Satpal is also dismissed.

50. The net result is that both appeals are dismissed.

MANMOHAN SINGH, J

BADAR DURREZ AHMED, J MAY 09, 2011 dp/jk