Delhi High Court

Kuldeep Singh vs State on 19 November, 2012

Author: Sanjiv Khanna

$~R-15.
*IN THE HIGH COURT OF DELHI AT NEW DELHI


+       CRIMINAL APPEAL No. 496/2009
                                  Date of decision: 19th November, 2012


        KULDEEP SINGH                                   ..... Appellant
                         Through Mr. K.B. Andley, Sr. Advocate with
                         Mr. Mohd. Shamikh, Advocate.

                         Versus


        STATE                                          ..... Respondent

Through Mr. Sanjay Lao, APP for the State.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE S.P.GARG

SANJIV KHANNA, J. (ORAL):

The appellant-Kuldeep Singh, by the impugned judgment dated

26th March, 2009, stands convicted under Section 302 of the Indian

Penal Code, 1860 (IPC, for short) for murder of his wife-Nidhi. In

addition, the appellant has also been convicted, under Section 364 IPC,

for abduction of the deceased. By the order of sentence, dated 31st

March, 2009, under Section 302 IPC, he has been sentenced to life

imprisonment and fine of Rs.50,000/-. In default of payment of fine,

he is to undergo simple imprisonment for a period of one year. For the

offence under Section 364 IPC, the appellant has been sentenced to

rigorous imprisonment for a period of ten years and fine of Rs.25,000/.

In default of payment of fine, the appellant is to undergo simple

imprisonment for a period of six months. We may note here that the

appellant and his parents, namely, Raghubir Singh and Krishna, were

also tried, under Section 498A IPC, but have been acquitted by the trial

court. The State or the victims have not preferred any appeal,

therefore, the acquittal is not under challenge before us.

2. The appellant married Nidhi, on 24th February, 2002, and they

had a girl child Ritika, on 30th November, 2002.

3. Balwant Singh (PW-6), father of Nidhi, deposed that, a month

after the birth of her child, Nidhi and her daughter Ritika were brought

to the deceased's parental house by her husband, Kuldeep. Thereafter,

she lived with her parents. PW-6 alleged that the appellant did not take

his wife and child back because of non-fulfillment of dowry demand.

However, on 25th June, 2004, after about 1 ½ years, the appellant-

Kuldeep came to their house and expressed his desire to take Nidhi

back. Nidhi and Ritika went with the appellant, Kuldeep. On 5th July,

2004, the appellant came to visit PW-6's house with Nidhi and their

daughter, Ritika. He informed PW-6 that the appellant had a dispute

with his brother, Pradeep, and, consequently, he wanted to live

separately. He assured that he would look for a house in Narela, Delhi,

and, thereafter, take Nidhi and Ritika to reside with him. On 9th July,

2004, at 4.30 P.M., the appellant came to their house and stayed there

for about ten minutes. He took Nidhi with him, on the pretext that he

wanted to show a house in Narela. He had said that he would drop

Nidhi back soon, but, Nidhi did not return for next three-four days.

Thereafter, with some of his relatives, and PW-6 went to the appellant-

Kuldeep's house, at village Samalkha, District Panipat, Haryana.

Nidhi was not found to be there. On an enquiry, from Kuldeep and his

parents, they received evasive and unsatisfactory replies. This made

Balwant Singh suspicious. He felt that she might have been killed,

concealed, or had been made to disappear, by her in-laws.

Accordingly, a complaint (vide Ex.PW-6/A) was filed to the SHO,

Kanjhawala, Delhi, on 12th July, 2004 at 9.30 P.M.

4. Seema (PW-8) Nidhi's sister, made a similar statement about

Nidhi's marriage to the appellant, on 24th February, 2002, and the girl

child, Ritika's birth, on 30th November, 2002. She avered that, when

Ritika was about one month old, the appellant-Kuldeep brought Nidhi

and Ritika to Nidhi's parental house, in Delhi, and left them there

stating that he could not afford to look after them. Nidhi remained

with her parents, for about 1 ½ years, and nobody came to take either

her or Ritika back, despite various requests. Suddenly, on 25th June,

2004, the appellant-Kuldeep came to PW-6's house, and took Nidhi

and Ritika with him to his village at Samalka. At that time the

appellant had said that he had suffered a loss in his juice-shop business

and was in need of Rs.50,000-60,000/-,to start a new business. On 5th

July, 2004, the appellant-Kuldeep again came to Nidhi's parental house

and left her and Ritika there. On 9th July, 2004, the appellant came

back to PW-6's house and took Nidhi saying that he wanted to show

her a house, he wanted to rent, in Narela. PW-8, who was present in

the house at the time, had heard the conversation that had taken place

between the appellant and her father, Balwant (PW-6). The appellant

had stated that he would drop Nidhi back after a short time. PW-8

accompanied Nidhi and the appellant to the bus stand. She recollected

that Nidhi was wearing a pink and white salvar suit, with a white

coloured chunni and brown leather sandals. On 12th July, 2004, she

had received the appellant's phone call wherein Kuldeep had stated

that we would be coming to take Nidhi. PW-8 retorted that Nidhi had

left with the appellant, on 9th July, 2004. On this, he did not reply and

disconnected the call. PW-8 told this fact to her father and mother. In

court, she identified her sister's clothes and sandals.

5. In addition to this, we have statement of Sudesh (PW-10), a

neighbour of PW-6. She has stated that PW-6's eldest daughter Nidhi

was married to the appellant-Kuldeep. She correctly identified

Kuldeep in the court. On 9th July, 2004, at about 4.15/4.30 P.M., she

last saw Nidhi and Kuldeep walking in the street, accompanied by

Seema. Thereafter, on 13th July 2004 she came to know that Nidhi had

been murdered by Kuldeep. Obviously, the last statement is not

admissible. She affirmed that Nidhi was staying in PW-6's house for 1

½ years, prior to the day she saw her last, i.e. 9th July, 2004. She has

stated that Nidhi used to tell her that there were some problems, in her

in-laws house, regarding "give and take" (lain-dain).

6. We have examined the cross-examination of PWs 6, 8 and 10,

on behalf of the appellant, and there is nothing to discredit the

statements made by PWs 6, 8 and 10, that Nidhi was seen for the last

time, when she had left with the appellant on 9th July, 2004. She had

not returned, thereafter. PW-6 and some others visited Kuldeep's

house in village at Samalka, Panipat, and on being questioned, Kuldeep

could not give specific reply, about the whereabouts of Nidhi. Thus, it

has been proved beyond doubt that Nidhi had left with the appellant,

on 9th July, 2004. Thereafter, Nidhi was not seen and did not return to

her parental house.

7. PW-6 was unable to find Nidhi, therefore, on 12th July,2004, he

made a written complaint to the Police Station, Kanjhawala (vide

Ex.PW-6/A). This complaint was recorded by Sub-Inspector Hans Raj

(PW-9) who affirmed that the complaint (marked Ex.PW-6/A) had

been made to the SHO, Police Station Kanjawala and was, thereafter,

marked to him for necessary action and investigation. On receiving the

complaint, PW-9 prepared the rukka (vide Ex.PW-9/A) on 13th July,

2004 morning and handed over the same, to the duty officer for

registration of the case. On this basis, FIR No. 168/2004 was

registered under Section 498A/364 IPC. PW-9 has stated that, on 13th

July, 2004, he, along with some other police officers, went to Mayur

Vihar Colony, Samalkha, District Panipat, Haryana and interrogated

Kuldeep. Thereafter, he was arrested (vide memo Ex.PW-2/A) at

11.30 A.M., of that morning. Personal search memo of the accused

(Ex.PW-2/B) was signed and proved by him. Upon interrogation,

Kuldeep made and signed the disclosure statement (Exhibit PW-2/C) in

his presence. In the said disclosure statement, the appellant had stated

as under:-

".....On 10th July, 2004 on the request of my mother I had taken Nidhi to Dehradoon and had spent the night at Kaluram Dharamshala. On the next day at 11th July, 2004 I took Nidhi to Mussoorie where we went to see Kempty Falls. In the evening I took Nidhi to a turn on the Mussoorie-Dehradoon road, and after about three kilometers, I took her down an unmetaled road. Thereafter, I had pressed Nidhi's neck with my hands, and killed her. I then threw the dead body of Nidhi down the mountain cliff. I hid the slippers and chunni of Nidhi in a pit near the bushes."

(We have translated the disclosure statement.)

8. For the purpose of Section 27 of the Evidence Act, 1872, the

disclosure statement is admissible only in respect of the averment

made by Kuldeep -that the body of Nidhi, and her slippers and chunni

could be found about three kilometers down the Mussoorie-Dehradoon

road. The other portions of his statement, regarding commission of the

offence, are not admissible in view of the provisions of Sections 24 to

27 of the Evidence Act.

9. After the disclosure statement was made, the appellant was

produced before the Metropolitan Magistrate, Tis Hazari Court, on 13th

July, 2004. On the same day, PW-9 made an application, before the

Metropolitan Magistrate, seeking the appellant's police custody, for

five days, in order to make the recovery of the dead body, on the basis

of the disclosure statement made. The said application is available on

the trial court record. By order dated 13th July, 2004, police remand

was allowed for a period of five days. The court recorded that the dead

body was yet to be recovered in the said case.

10. Thereafter, PW-9, along with the second Investigating Officer

Inspector Dharampal (PW-15), some police officers and Rajesh and

Pramod (relatives of the deceased), went to Mussoorie in a private

vehicle, and spent the night of 13th July, 2004, at Dehradoon. On 14th

July, 2004, while they were en route an area just 3 kilometers before

Mussoorie, Kudeep identified the place in the forest, where he had

thrown Nidhi's body from the mountain. On the basis of the

identification, made by the appellant, they recovered two leather

slippers and one white coloured chunni which was sealed in a pulanda

by the IO and taken into possession (vide Ex.PW-9/C which was

signed by PW-9). The said articles, as per PW-9, were identified by

Pramod (PW-14) as articles which belonged to his cousin sister, Nidhi.

Thereafter, they went to Police Station, Mussoorie and got in touch

with the S.O., Police Station Mussoorie, District Dehradoon- S.I.

Ashok Arora. K.P. Singh, S.D.M., Mussoorie reached there and

accompanied them to the spot from where the appellant had thrown the

body, down the hill into the forest. On the basis of the identification

made by the appellant, they recovered the body of Nidhi from the

bushes. It was noticed that Nidhi had not died and that there was some

movement in her body. She was subsequently taken to Trinity

Hospital, Landoor, Mussoorie and admitted there, as per the directions

of the S.D.M.. The recovery of Nidhi was duly inventorised and

documented vide Ex.PW-4/A which was signed by PW-9. Nidhi was

admitted in the said hospital, at about 10 P.M., but was unable to give

any statement. Sometime after 10.00 P.M., Nidhi was declared dead.

Her body was sent to the mortuary for the post mortem, as per the

directions of the S.D.M., Dehradun. The post mortem was conducted

by Captain Hemant Bhardwaj (PW-12) who was the Medical Officer,

Doon Hospital, Dehradoon. We will refer to his statement

subsequently.

11. Inspector Dharampal (PW-15) has made a similar statement that

he, along with SI Hans Raj (PW-9), Constable Ramesh and two public

persons, Rajesh (PW-2) and Pramod (PW-14), had left for Mussoorie

on 13th July, 2004. They spent the night at Dehradoon and reached

Mussoorie on 14th July, 2004 morning. Appellant-Kuldeep pointed out

the area where he threw Nidhi's body which was three kilometers

before Mussoorie in the "Ban Suman Estate" area. Thereafter they, got

in touch with the SHO, Police Station Mussoorie, SI Ashok Arora, who

passed on the information to the area S.D.M.. The S.D.M. then came

to the police station and was present when Nidhi's body was found.

Nidhi was discovered to be still breathing and was admitted to the

hospital, on the directions of the SDM. Photographs were taken by the

S.I. Ashok Arora. The slippers and chunni lying near the spot, were

recovered and taken into possession vide Ex.PW-9/C. On 24th August,

2004, he received the papers of the inquest proceedings from

Dehradoon, through Constable Ramesh, and, on the basis of those, he

prepared and filed the challan.

12. Learned senior counsel, appearing for the appellant, before us

has submitted that the dead body of Nidhi was recovered on 13 th July,

2004 and the appellant was not taken to Mussoorie for identification.

He has submitted that, in the photographs, police officers, S.D.M. etc.

are visible, but the appellant cannot be seen. He has drawn our

attention to the cross-examinations of PW-9 and PW-15, in which it

was accepted that Kuldeep was not visible in the photographs. He

submits that this was because Kuldeep was still in the lock up at the

time.

13. Both PW-9 and PW-15 have denied the suggestion that Kuldeep

was locked up, when the recoveries were being made, and that the

appellant had not accompanied them the spot. We agree and accept the

prosecution version. The photographs, which have been marked

Ex.PW-15/1 to Ex.PW-15/11, clearly show that the emphasis was on

Nidhi. There are also some photographs of the van in which the body

was taken. The emphasis was not on the persons who were present

over there on the spot or on the appellant. The presence of the

appellant at Mussoorie is established and proved beyond doubt by the

statements of PW-9, PW-15, as well as that of SI Ashok Arora (PW-

16), and the SHO Mussoorie, S.D.M. K.P. Singh (PW-4). SI Ashok

Arora (PW-16) has stated that, on 14th July, 2004, he was posted as SO

at Police Station, Mussoorie, Dehradoon. At about 10.30 P.M.,

Inspector Dharampal, from the Delhi Police, had come to the Police

Station along with Kuldeep, who was correctly identified in the court.

The arrival entry was duly recorded in the Police Station, Mussoorie

vide DD entry No. 18 which was marked Ex.PW-16/A. Thereafter,

their departure from Police Station, Mussoorie and their subsequent

return to the Police Station were made vide DD entry Nos. 19 and 35.

The certified copies of these were marked Ex.PW-16/A1 and A2,

respectively. He has stated that they, along with the S.D.M., went with

the appellant, to a spot which was at a distance of about three

kilometers below Mussoorie, on the Dehradoon road. The appellant-

Kuldeep led them to a spot, about 400/500 metres down a "kuccha

rasta" or unmetalled road, off the main road. At the said place there

was a sharp slope going down the valley. From above, they could see

a lady's body lying about 60-70 feet down. He has stated that one

other person, namely, Pramod, who was probably the brother of Nidhi,

was accompanying them. The police officers and Nidhi's brother

managed to pull Nidhi's body out, with great difficulty. They noticed

that Nidhi was still alive, and the S.D.M. directed to take her to the

nearest hospital. She was accordingly taken to Trinity Hospital,

Landour, Mussoorie where she was provided medical treatment. Nidhi

was unable to speak and was in great pain. At about 10 P.M. she

succumbed to her injuries and died in the hospital. He had taken some

photographs when Nidhi was being pulled out and these were

subsequently developed. He also brought the negatives of the said

photographs which were marked Ex.PW-16/1 to Ex.PW-16/11. The

inquest proceedings were conducted the next day, at 11 A.M., by the

S.D.M. and another S.I., R.S. Pal, and the body was then sent for a

post-mortem examination to Dehradoon.

14. K.P. Singh, S.D.M. (PW-4) has stated similar facts. He has

stated that the body of a lady, Nidhi, was recovered on the basis of the

identification of the area made by Kuldeep. Recovery memo for the

same was prepared, vide Ex.PW-4/A, which bears his signatures at

point A. A sketch of the body, showing the injuries sustained, was

prepared vide Ex.PW-4/B. Nidhi was sent to the Trinity Grace

Hospital, Mussoorie, but she was not in a fit condition to make a

statement. After about 5/7 hours, she died in the hospital. The police

had sent a report (Ex.PW-4/C) for initiation of inquest proceedings

under Section 174 Cr.P.C. which was signed by him. He prepared a

panchnama. On his directions, the post mortem was conducted at

Dehradoon. In the cross-examination, he has stated that the Eco Task

Force had been deputed to patrol the plantation area but it was wrong

to suggest that Eco Task Force had informed him about the recovery of

the dead body. He further avered that there was no building or guest

house in the area within the radius of 100 metres from the place of

recovery.

15. Dr. Avinash Shastri (PW-3), Director Trinity Grace Hospital,

Landour, Mussoorie, Uttaranchal, has stated that on 14th July, 2004,

one Nidhi Rathi, aged 21 years, was brought to the emergency ward by

S.D.M. K.P. Singh, local police and the Delhi Police at about 11.15

P.M. She was unconscious and was not responding to external stimuli.

Her hair was matted with twigs, leaves and mud. Bruises could be

seen on both forearms, the lower-right part of the chest, back and on

both buttocks. Scratches were seen on her neck. The patient was

severally dehydrated, eyes congested and red, with foul smell fetor and

finger tips cynose (bluish). The necessary examination and treatment

was given, but in spite of resuscitative measures, the patient could not

be revived, and was finally declared dead at 10.05 P.M. on 14th July,

2004.

16. From the aforesaid it is clear that Nidhi had not been recovered

by the Eco Task Force on 13th July, 2004, otherwise, she would have

been admitted to the hospital much earlier. Not only officers from

Delhi Police, but also officers from the Mussoorie police and the

S.D.M., Mussoorie went to admit the deceased, in the hospital at 11.15

P.M. on 14th July, 2004. This clearly belies and negates the contention

of the appellant that the body of Nidhi was found, by the Eco Task

Force, before the disclosure statement and she was already hospitalized

for treatment on 13th July, 2004. The aforesaid statements of the police

officers of Delhi Police, Police Station Kanjhawala are affirmed by the

statements of Rajesh (PW-2) and Pramod (PW-14), who are

deceased's relatives. Pramod (PW-14) states that on 13th July,

2004 he, Inspector Dharampal, SI Hans Raj and two others had gone to

Mussoorie, with the appellant Kuldeep, in a private Maruti van. On

14th July, 2004 they were going towards Mussoorie, when the appellant

asked them to stop the vehicle about three kilometers before

Mussoorie. The appellant pointed out to a kind of platform, about 400-

500 meters below the road, and said that that he had thrown Nidhi from

the said platform down into the ravine after killing her. The appellant

pointed out, a pair of slippers and a chunni, and stated that these

belonged to Nidhi which PW-14 recognised. He has stated that Nidhi

was not in a fit condition to make a statement when she was in the

hospital. The vehicle in question belonged to one Rajesh, who was

also travelling with them.

17. Rajesh (PW-2) has avered that he is related to Balwant Singh

(PW-6) and has good relations with him. He states that Balwant

Singh's daughter, Nidhi, was married to the appellant-Kuldeep. They

had a daughter Ritika. He reiterated the facts which have already been

stated by PW-6, PW-8 and PW-10. He has stated that the appellant

Kuldeep had taken Nidhi with her on 9th July, 2004 on the pretext that

he wanted her to see a house in Narela. He has further stated that on

12th July, 2004 on Balwant Singh's request, he had gone with him to

the appellant-Kuldeep's house, and had questioned him about Nidhi.

The appellant did not give a proper reply, and on the basis of this, they

filed an FIR (complaint) with the Police Station, Kanjhawala. He has

stated that, on 14th July, 2004, he and Pramod (PW-14) had

accompanied the police to Mussoorie, and Kuldeep was also with

them. The appellant had pointed out the place, which was about three

kilometers before Mussoorie on the Dehradoon road, from where he

had thrown Nidhi on 11th July, 2004. The said platform was about 40-

50 feet down the hill, and the slippers and chunni of Nidhi were also

found lying on the platform, which were then taken into possession.

The local police was also called, and they went down in the ravine and

brought the body of Nidhi onto the platform. She was taken to the

hospital, as she was unconscious but breathing. The S.D.M. was also

present there.

18. It is clear that the aforesaid statements, which are in seriatim,

corroborate that the recovery of the dead body was done pursuant to

the identification of the location, made by the appellant. No one but

the person, who had committed the offence, could have known the

place where Nidhi's body could be found. The body was found in a

far-off place, on the Dehradoon-Mussoorie road, at a spot three

kilometers before Mussoorie. It is apparent that the exact location of

the place, where the body of Nidhi could be found, was known only to

the appellant and to no one else. Recovery of the dead body at the

instance of, and on the basis of, disclosure statement made by the

appellant is an incriminating fact which substantially establishes the

offence against the appellant.

19. Faced with the aforesaid position, learned counsel for the

appellant has drawn our attention to four aspects. Firstly, it is

submitted that there was a delay in reporting the matter to the police

Nidhi had not returned home on 9th July, 2004, but the rukka vide

Ex.PW-6/A was made on 12th July, 2004 at 9.30 P.M. Secondly, it is

stated that sister of Nidhi, namely, Namita is married to the brother of

the appellant Kuldeep, i.e., Pradeep. It is pointed out that the

statements of Namita and Pradeep have not been recorded. Thirdly,

our attention is drawn to the statement of Darshan Lal Saklani (PW-5),

a watchman at Lala Kallumal Dharamshala, Dehradoon, who has stated

that he did not see any lady with Sunil. It is the prosecution case that

the appellant, along with his wife, had stayed in the said dharamshala,

on 10th July, 2004. Fourthly and importantly, he emphasised that the

appellant and his parents have been acquitted from the charge under

Section 498A IPC. Accordingly, it is submitted that motive had not

been proved or established. There was no reason or cause for the

appellant to commit murder of Nidhi. Lastly, it is pointed out that the

Post Mortem Report (Exhibit PW-12/A) does not mention to any

strangulation mark on the neck. He has drawn our attention to the

external and internal injuries stated and mentioned in the post mortem

report and the statement of Captain Hemant Bhardwaj PW-12, Medical

Officer Doon Hospital who had conducted the said post mortem.

20. Regarding the first contention, the delay in making the

complaint is explained and elucidated in the statements of PW-6 and

PW-8. The appellant had only recently re-established/re-newed his

relations with the deceased, and had expressed desire, to move in,

independently, with the deceased, in Narela, Delhi. For this, on 9 th

July, 2004 he had taken the deceased to show her a place for rent, in

Delhi and had promised to get her back soon. A few days earlier also

Nidhi and Ritika had gone and stayed with Kuldeep, the appellant.

There was no reason for PW-6 or 8 to suspect foul play. It was only

when the appellant himself, called PW-8, on 12th July, 2004,

apparently to take the deceased with him, that she alerted the

household. They have also averred that PW-6, and some relatives,

went, on the very same day, to the house of the appellant at Sonepat, to

enquire about the deceased. On receiving evasive replies, the same

night, at 9.30 P.M., the complaint was filed and FIR registered. In the

light of these circumstances, we do not think that any delay was made

in filling the complaint once PW-6, and his family, were apprised of

the facts and became suspicious.

21. It is correct that sister of Nidhi- Namita is married to brother of the

appellant, i.e., Pradeep. This factual position is accepted and admitted

by the prosecution. Inspector Dharampal (PW-15), in his cross-

examination, has also accepted the said fact. He has avered that he had

tried to examine Namita but she refused. Husband of Namita, Pradeep

also did not join. It has come on record that, after birth of daughter

Ritika, in November, 2002, Nidhi had come back to her parental house

and had stayed there for 1 ½ years. During this period, Namita had

continued to stay with Pradeep and did not come back to her parental

house. Apparently, the relationship, between Namita and Pradeep, was

cordial and smooth, whereas the relationship, between the appellant

and Nidhi, was sour since there were disputes and differences inter se.

Therefore, it is understandable why Namita and Pradeep refused to

take sides. They were in an awkward position as brother of Pradeep,

i.e., the appellant was being implicated for murder and death of Nidhi,

sister of Namita. Namita's non-joining does not, in any way, affect the

statement of other witnesses and is, therefore, not fatal to the

prosecution case. It should also be noticed that neither Namita nor

Pradeep appeared as defence witness.

22. Darshan Lal Saklani (PW-5), the watchman of Lal Kallumal

Dharamshala, Naglaia, Raja Road, Dehradoon, has stated that on 10th

July, 2004, one person named Sunil had come to the dharamshala and

stayed there alone. He has stated that, as the matter was 2-3 years old,

he does not recollect seeing any lady with "Sunil". He, however,

admitted that police had come to the dharamshala twice for

interrogation and once the police had come along with the boy, in

whose name the slip was prepared. The statement of PW-5 was

recorded, on 31st July, 2006. Obviously number of persons visit the

Dharamshala and PW-5 has stated that, on every day basis, he was

dealing with several persons and, therefore, he could not even identify

whether the appellant, who was present in the court, was the same

person who had stayed in the Dharamshala, in the name Sunil. The

statement of PW-5 alone, therefore, does not cast any doubt or dent on

the prosecution case.

23. On the question of motive, the police had tried to make a case

under Section 498A but was not successful. What has come on record

is the factum that the appellant Kuldeep had suffered a heavy loss in

his business and had wanted money for starting a new business, as

averred by PW-6 and PW-8. Reflection of the same can be found in

the statement of PW-10, the neighbour. Failure of the charge under

Section 498A does not show that there were no disputes and

differences between the appellant and Nidhi. Motive, in several cases,

can be very difficult to establish as it is a matter of intention. Motive is

relevant and important in cases of circumstantial evidence but not

mandatory. In Ravinder Kumar v. State of Punjab, (2001) 7 SCC

690, the Supreme Court has emphasised that:

18....It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that the prosecution in many cases could point to is the possible mental element which could have been the cause for the murder. In this connection we deem it useful to refer to the observations of this Court in State of H.P. v. Jeet Singh [(1999) 4 SCC 370 : 1999 SCC (Cri) 539] : (SCC p. 380, para 33) "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."

19. ... We are, therefore, not persuaded to change the tide on account of the inability of the prosecution to prove the motive aspect to the hilt."

24. Conviction is possible even if motive is not conclusively

proved. What has to be seen is the cumulative effect of entire evidence

which is proved beyond doubt. If the evidence, on record, establishes

that the accused was the perpetrator of the crime and no third person

could have committed the same, conviction is possible and mandated.

In the present case, looking at the evidence on record, we are satisfied

that it has been proved beyond doubt that the appellant had taken

Nidhi, with him on 9th July, 2004 and, thereafter, she did not return to

her parental home. The appellant has not stated and avered what

happened and where Nidhi had gone. Pursuant to the disclosure

statement, made by the appellant, the dead body of Nidhi was found in

the ravine off Dehradoon-Mussoorie Road, three kilometers before

Mussoorie. Till then, no one knew where Nidhi was and what had

happened to her. It has been established that it was appellant who

revealed the spot from where body was recovered. On the basis of the

identification of the location, pointed out by the appellant, Nidhi was

recovered from the ravine and taken to the hospital.

25. The contention, of the appellant, that the Post Mortem Report

does not refer the strangulation marks and Captain Hemant Bhardwaj

(PW-12) who conducted the said post mortem has not referred to the

same, according to us, is inconsequential. Dr. Avinash Shastri (PW-3),

in his statement, has stated that scratches were seen over the neck. The

Post Mortem Report refers to the cause of death as "combined effects

of cerebral damage and aspiration pneumonipis following head injury

as a result of blunt trauma." As per the prosecution, the appellant

threw Nidhi, in the ravine, on 11th July, 2004, and her body was

recovered, on 14th July, 2004, at about 10 A.M. At that time, Nidhi

was unconscious but still breathing and had some life in her. It is

obvious that the death had not taken place because of the strangulation

but because of the fact that the Nidhi was thrown off the cliff. The

statement of PW-3, in this regard is relevant, and is reproduced below:-

"...The patient was unconscious, not responding to external stimuli with hair meted with twigs, leaves and mud. Bruises seen on both forearms, right lower part of the chest, back and both buttocks. Scratch seen over neck. The patient was severally dehydrated, eyes conjested and red with foul smelling fetor, finger tips cynose (bluish).

On examination of the chest coarse creps were heard, ronchi heard. Pupils slightly reacting to the light. Pervaginal examination there is a purulent discharge (dirty discharge) with bleeding and excoertions over the labia majore, faecis around vaginal and inner thighs.

All necessary lab investigations were done. Necessary medication given details of which was mentioned in the documents running into 9 pages, photocopy of the same are collectively Ex.PW-3/A (Original seen and returned). All the resustative measures were taken but as the patient was brought in a state of unconsciousness, patient could not be revived and CPR (Cardio Pulmonaroiry Resustation) was done and finally patient was declared dead at 10.05 P.M. on 14th July, 2004."

26. When we read the aforesaid statement, along with the Post

Mortem Report, we do not think absence of strangulation marks, from

the post mortem report, is relevant and or casts doubt on the

prosecution case.

27. In view of the aforesaid, discussion, we do not find any merit in

the present appeal and the same is dismissed. Conviction of the

appellant is upheld. We also upheld the sentence awarded to the

appellant. However, we reduce the fine of Rs.50,000/- and Rs.25,000/-

imposed under Sections 302 and 364 IPC to Rs.25,000/- and

Rs.10,000/- respectively. In case of non payment of fine, the appellant

will be liable to undergo simple imprisonment for a period of three

months and one month respectively.