Delhi High Court

Parminder Kaur vs State on 1 August, 2014

Author: G.P. Mittal

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Reserved on: 19th May, 2014
                                              Pronounced on: August 01, 2014


+      CRL. A. 544/2011

       PARMINDER KAUR                                       ..... Appellant

                                Through:   Mr. Avninder Singh with Ms. Sumi
                                           Anand, Advocates
                                Versus

       STATE                                                ..... Respondent

                                Through    Ms. Rajdipa Behura, APP

+      CRL. A. 209/2012

       MANDEEP SINGH                                        ..... Appellant

                                Through:   Mr. Manish Kaushik with Mr. Dhruv
                                           Gupta, Advocates
                                Versus

       STATE                                                ..... Respondent

                                Through    Ms. Rajdipa Behura, APP


       CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA
       HON'BLE MR. JUSTICE G.P. MITTAL




Crl.A.Nos.544/2011 & 209/2012                                Page 1 of 42
                                 JUDGMENT

G.P. MITTAL, J.

1. These appeals are directed against the judgment dated 23.03.2011 and

order on sentence dated 31.03.2011 arising out of FIR No. 594/ 2007,

P.S. Defence Colony (Sessions Case No. 03/2010/2008) whereby the

appellants were convicted for the offence punishable under Sections

302/201 of the Indian Penal Code, 1860 (IPC for short) read with

Section 34 IPC. For the offence punishable under Section 302/34 IPC,

they were sentenced to undergo rigorous imprisonment for life and to

pay a fine of Rs. 10,000/- each, in default of payment of fine they

were sentenced to undergo simple imprisonment for one year each.

The appellants were further sentenced to undergo rigorous

imprisonment for one year each for the offence punishable under

Section 201/34 IPC. The sentences were to run concurrently.

2. Inspector Meera Sharma (PW-21) is the Investigating Officer of the

case. She deposed that on 28.10.2007, she was posted as Inspector,

Law and Order at Police Station Defence Colony. On the said day, on

receipt of a call from District Control Room, she reached C-30, Sawal

Nagar, Defence Colony as a murder had taken place there. On

reaching the spot, she found that S.I. Rohtash Kumar along with some

staff was already present there. Dead body of a Sikh gentleman was

lying in the gallery near the stairs on the ground floor. The

Investigating Officer also met Laxmi Narayan (PW-1) and Constable

Vikram Singh (PW-7), who were the landlord and a tenant

respectively on the second floor of premises bearing no. C-30, Sawal

Nagar. On inspection of the dead body serious injuries on the right

side of the head, right cheek, lips and both the eyes were noticed.

There were injuries on the chest of the dead body which appeared to

be caused by a sharp edged weapon. The Investigating Officer

recorded statement Ex. PW-7/A of Constable Vikram Singh to the

effect that the dead body belonged to one Harbhajan Singh, who was a

tenant on the first floor in the said building. He also informed the

Investigating Officer that he had heard noise of a quarrel from the

house of the deceased till quite late in the night. He, however, slept

after closing the door. The Investigating Officer made endorsement

Ex. PW-21/A on the said statement of Constable Vikram Singh and

transmitted it to the Police Station for registration of a case under

Section 302 IPC.

3. The Investigating Officer summoned the crime team which inspected

the spot. The photographer of the crime team took photographs of the

dead body from different angles. On inspection of the kitchen on the

first floor, one empty liquor bottle (which had a label of 'blue moon

vodka') and one empty beer can were seized from the dustbin of the

kitchen. Inspector Meera Sharma (PW-21) deposed about seizure of

the earth control and blood from near the dead body. A tawa and one

broken tooth was found near the dead body. Inspector Meera Sharma

found bloodstains on the wooden ply attached to the folding bed lying

on the first floor. She also noticed blood spots on the side wall, where

the folding bed was lying. She deposed that she had cut the

bloodstained wooden ply with the help of a chheni and hammer and

bloodstained surface from the wall and kept the same in a plastic jar

and sealed the same with the seal of MS.

4. Inspector Meera Sharma further deposed that when she opened the

wooden almirah fixed in the room, she found one bloodstained knife.

She prepared a sketch of the knife and seized the same. Inspector

Meera Sharma interrogated deceased's wife i.e. the appellant

Parminder Kaur and their maidservant Chanda separately. On

sustained interrogation, appellant Parminder Kaur made a confessional

statement about commission of deceased Harbhajan Singh's murder in

connivance with one Mandeep Singh (her co-convict). (The

confessional statement is not admissible in evidence as there was no

discovery of fact in pursuance thereof). Inspector Meera Sharma

testified that Parminder Kaur's nails were having blood stains. The

nails were cut with the help of a nail cutter and kept in a plastic jar.

She deposed that she also interrogated Chanda (the maidservant) and

on finding her complicity in commission of the offence punishable

under Section 201/34 IPC, she was also arrested. Inspector Meera

Sharma testified that she along with appellant Parminder Kaur and

accused Chanda (already acquitted), S.I. Rohtash Kumar and other

police officials reached Hotel Hayat Regency and on pointing out by

appellant Parminder Kaur, apprehended appellant Mandeep Singh

from the taxi stand. Appellant Mandeep Singh was also interrogated

and his disclosure-cum-confessional statement Ex. PW-13/H was

recorded. In pursuance of the said disclosure statement, appellant

Mandeep Singh got recovered his bloodstained shirt from Jhalkari

Devi Park. The Investigating Officer also seized the socks worn by

appellant Mandeep Singh as bloodstains were also found on the same.

The pair of socks were sealed by the Investigating Officer.

5. Laxmi Narain (PW-1), Kumari Manpreet Kaur (PW-2), daughter of

deceased Harbhajan Singh and Dr. Adarsh Kumar (PW-12) are other

most crucial witnesses examined by the prosecution. Kumari

Manpreet Kaur (PW-2) (aged 10-11 years and a student of 6th standard

at the time of the incident) testified that she used to call appellant

Mandeep Singh as uncle. She deposed that she used to reside in a

house in Sawal Nagar along with her mother Parminder Kaur, her

deceased father, her younger brother and a maidservant Chanda. She

testified that on the day of occurrence near the festival of Karva

Chauth, her father, her mother, appellant Mandeep Singh, maid

servant Chanda, her younger brother Kulvinder Singh and she were

present in the house. Her father, appellant Mandeep Singh and her

mother Parminder Kaur were consuming liquor in the night. Her

mother sent her and her brother out of the room after taking meal. In

the morning, a lady Inspector came to their house and showed her the

dead body of her father, which she identified. She deposed that

whenever appellant Mandeep Singh used to visit their house, their

mother used to send her and her brother to another room. She testified

that the relationship between her father and her mother was not good.

In cross-examination, she denied the suggestion that she had not seen

appellant Mandeep Singh in her house on the day of occurrence.

6. Laxmi Narain (PW-1) is the landlord of house no.C-30, Sawal Nagar.

Deceased Harbhajan Singh was a tenant on the first floor thereof. He

testified that on 28.10.2007, he woke up at about 05:45 a.m. and went

to the stairs leading to the first floor. He noticed some blood at the

stairs. He went to the second floor and woke up Vikram Singh (PW-

7), a constable who was residing as a tenant on the second floor of the

house. They noticed a dead body lying wrapped in bedding in the

gallery near the stairs on the ground floor. Constable Vikram Singh

(PW-7) called the PCR. On checking, the dead body was found to be

of Harbhajan Singh who was a tenant in the first floor portion of his

house. He testified that appellant Mandeep Singh used to visit the

tenanted house. Deceased Harbhajan Singh had told him that he was

suspecting illicit relationship between the two appellants but his wife

appellant Parminder Kaur used to deny the same. He added that on

27.10.2007 in the evening, appellant Mandeep Singh had come to the

house of the deceased. In cross-examination by the learned APP for

the State, the witness deposed about seizure of blood, bloodstained

earth, earth control, wooden ply, tawa, etc. from the spot. In cross-

examination on behalf of appellant Mandeep Singh, the witness denied

the suggestion that the appellant had not visited the portion in

occupation of the deceased on 27.10.2007.

7. Dr. Adarsh Kumar (PW-12) had conducted autopsy on the dead body

of the deceased. He found 29 injuries on the person of the deceased.

He deposed that injuries no. 1 to 19 and 21 were caused by a blunt

object; injury no. 20 was produced by blunt object having blunt linear

margins, and injuries no. 22 to 29 were caused by sharp cutting object.

He opined that injuries no. 1 and 2 individually as well as all the

injuries collectively were sufficient to cause death in the ordinary

course of nature. He testified that the injuries were ante-mortem and

fresh in duration. The time since death was estimated as 1½ days.

8. On appreciation of evidence, the Trial Court found that the

prosecution case against the appellants was fully and firmly

established and thus, convicted and sentenced the appellants as stated

earlier. Chanda, the maid servant, stands acquitted and no appeal has

been filed to challenge the said finding in the judgment.

9. There is no direct evidence of commission of the crime. The

prosecution case rests only on circumstantial evidence.

10. It is well settled that where the prosecution case rests purely on

circumstantial evidence, the circumstances from which the conclusion

of guilt is to be drawn must, in the first instance be fully established;

the circumstances should be of conclusive nature; the circumstances

taken together must unerringly point to the guilt of the accused; the

circumstances proved on record must be incompatible with the

innocence of the accused and form the complete chain of

circumstances and it must be proved that in all probabilities, the

offence was committed by the accused. (Hanumant Govind

Nargundkar & Anr. v. State of Madhya Pradesh, AIR 1952 SC 343

and Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC

116).

11. In order to bring home the appellants' guilt, the prosecution relied

upon and tried to establish the following circumstances:-

(1) Matching of the chance print on vodka bottle with the admitted

fingerprints of the appellants;

(2) Recoveries of certain articles i.e.:-

a) Recovery of the dead body in a bedding from the gallery

near the stairs of the ground floor of House No.C-30,

Sawal Nagar;

b) Presence of blood on the walls of the room;

c) Presence of blood ('B' group) on the wooden ply of

folding bed;

d) Recovery of knife containing blood of 'B' group from the

almirah of the room in occupation of the deceased and

appellant Parminder Kaur;

e) Presence of blood of 'B' group on the nails of appellant

Parminder Kaur;

f) Presence of blood on the socks seized from appellant

Mandeep Singh at the time of his arrest and on the shirt

got recovered by him in pursuance of his disclosure

statement from Jhalkari Devi Park;

g) Certain messages and photographs of the two appellants

on the mobile phone of the two appellants to show that

they had an intimate relationship;

       (3)     Motive; and


       (4)     Last Seen.

12. We shall deal with the abovementioned circumstances one by one

discussing the relevant evidence and the contentions raised by the

learned counsels for the parties at the appropriate stage.

MATCHING OF CHANCE PRINT ON VODKA BOTTLE WITH THE

ADMITTED FINGERPRINTS OF THE APPELLANTS

13. Head Constable Raj Kumar (PW-16) deposed that on 28.10.2007, he

along with other members of the crime team reached house no. C-30,

Sawal Nagar near Defence Colony where a dead body was lying. He

deposed that he was able to lift one finger print (Q1) from the vodka

bottle lying there vide his report Ex. PW-16/A. During the course of

investigation, specimen finger prints S1 of appellant Parminder Kaur

and S2 of appellant Mandeep Singh were obtained by the I.O. As per

result of the examination, "1. The lower portion of chance print

marked Q1 is IDENTICAL with right thumb impression marked S1 on

the finger impression slip of Smt. Parminder Kaur @ Rani w/o Lt. Sh.

Harbhajan Singh R/o C-30, Sawal Nagar, New Delhi. 2. The upper

portion of chance print marked Q1 is IDENTICAL with right thumb

impression marked S2 on the finger impression slip of Mandeep Singh

S/o Krishan Singh R/o Village Roopar, P.O. Poal, P.S. Noorpurbadi,

Distt. Roopar, Punjab."

14. The learned counsel for the appellants have contended that the alleged

report of finger print expert dated 15.02.2008 has neither been proved

nor put to the appellants in their statements under Section 313 of the

Code of the Criminal Procedure, 1973 (Cr.P.C.). Referring to State of

U.P. v. Mohd. Iqram & Anr., (2011) 8 SCC 80, the learned counsel

have argued that the court cannot place reliance on any incriminating

material unless it was put to the accused in his statement under Section

313 Cr.P.C.

15. On the other hand, the learned APP for the State has relied on Section

293 Cr.P.C. and has submitted that no formal proof of the report of

Director, Finger Print Bureau is required as it is per se admissible. It is

urged that the appellants were very much aware that their specimen

finger prints were taken and also copy of the report of finger print

expert was duly supplied to the appellants and thus, there was no

prejudice caused to the appellants in not putting the report to them in

their examination under Section 313 Cr.P.C. The report can very well

be relied upon by the Court.

16. Section 293 of the Cr.P.C. reads as under:-

"293. Reports of certain Government scientific experts.

(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject- matter of his report.

(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.

(4) This section applies to the following Government scientific experts, namely:-

(a) any Chemical Examiner or Assistant Chemical Examiner to Government;

(b) the Chief Inspector of- Explosives;

(c) the Director of the Finger Print Bureau;

(d) the Director, Haffkeine Institute, Bombay;

(e) the Director, [Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;

(f) the Serologist to the Government.

(g) any other Government scientific Expert specified by notification by the Central Government for this purpose."

17. Thus, as per Section 293 Cr.P.C., no formal proof of the report given

by certain experts mentioned in sub-Section (4) is required. The

experts other than those mentioned in sub-Section (4), on the other

hand, have to appear as a witness in order to prove their report. An

option has been given to the experts mentioned in sub-Section (4) if

they are summoned as a witness, to either appear themselves or depute

any responsible officer working with them to attend the Court if the

earlier said expert is unable to attend the Court personally, provided

such officer is conversant with the facts of the case and can

satisfactorily depose in court on behalf of the expert.

18. In the instant case, the relevant report is dated 15.02.2008. The report

under Section 173 Cr.P.C. in the case was presented in the court on

23.01.2008 and the copies of the documents were supplied to the

appellants on 25.01.2008. It is nowhere stated or recorded as to when

the report dated 15.02.2008 was produced in the Court and if copy

thereof was ever supplied to the appellants. An undated application

signed by Insp. Meera Sharma (PW-21) is on record. There is no

order on the application. The copies of the report are still attached

with the application. Assuming that copy of the report dated

15.02.2008 was supplied to the appellants, admittedly the report was

never tendered in evidence by the prosecution nor any witness

produced by the prosecution made any mention about this report. All

the more, the report was never put to the appellants in their

examination under Section 313 Cr.P.C. Law with regard to the Court's

obligation to put incriminating material to accused in his examination

under Section 313 Cr.P.C. was discussed in great detail by the

Supreme Court in Paramjeet Singh v. State of Uttarakhand, (2010) 10

SCC 439. In paras 21 to 30, the Supreme Court observed as under:-

"21. An accused can be questioned under Section 313 Cr.P.C. only for the purpose of enabling him personally to explain any circumstance appearing in the evidence against him. No matter how weak or scanty the prosecution evidence is in regard to certain incriminating material, it is the duty of the court to examine the accused and seek his explanation on incriminating material which has surfaced against him.

22. Section 313 Cr.P.C. is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 Cr.P.C. cannot be used against him and have to be excluded from consideration. (Vide Sharad

Birdhichand [(1984)4 SCC 116 : 1984 SCC (Cri) 487 : AIR 1984 SC 1622] and State of Maharashtra v. Sukhdev Singh [(1992) 3 SCC 700 : 1992 SCC (Cri) 705])

23. In S. Harnam Singh v. State (Delhi Admn.) [(1976) 2 SCC 819 : 1976 SCC (Cri) 324 : AIR 1976 SC 2140], this Court held that non-indication of inculpatory material and its relevant facts by the trial court to the accused adds to the vulnerability of the prosecution case. The recording of the statement of the accused under Section 313 Cr.P.C. is not a purposeless exercise.

24. If any appellate court or revisional court comes across the fact that the trial court had not put any question to an accused, even if it is of a vital nature, such an omission alone should not result in the setting aside of the conviction and sentence as an inevitable consequence. An inadequate examination cannot be presumed to have caused prejudice. Every error or omission in compliance with the provisions of Section 313 Cr.P.C., does not necessarily vitiate trial. Such errors fall within the category of curable irregularities and the question as to whether the trial is vitiated, in each case depends upon the degree of error and upon whether prejudice has been or is likely to have been caused to the accused. Efforts should be made to undo or correct the lapse.(Vide Wasim Khan v. State of U.P. [AIR 1956 SC 400 : 1956 Cri LJ 790], Bhoor Singh v. State of Punjab [(1974) 4 SCC 754 : 1974 SCC (Cri) 664 : AIR 1974 SC 1256], Labhchand Dhanpat Singh Jain v. State of Maharashtra [(1975) 3 SCC 385 : 1975 SCC (Cri) 11 : AIR 1975 SC 182], State of Punjab v. Naib Din [(2001) 8 SCC 578 : 2002 SCC (Cri) 33]and Parsuram Pandey v. State of Bihar[(2004) 13 SCC 189 : 2005 SCC (Cri) 113].)

25. In Asraf Ali v. State of Assam [(2008) 16 SCC 328 : (2010) 4 SCC (Cri) 278], this Court observed: (SCC p. 334, para 21)

"21. Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced."

(emphasis supplied)

26. In Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : AIR 1973 SC 2622], this Court observed as under: (SCC p. 806, para 16)

"16. ... It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been

questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for his conviction."

(emphasis added)

27. In Ganesh Gogoi v. State of Assam [(2009) 7 SCC 404 : (2009) 3 SCC (Cri) 421], this Court, relying upon its earlier decision in Basavaraj R. Patil v. State of Karnataka [(2000) 8 SCC 740 : 2001 SCC (Cri) 87], held that the provisions of Section 313 Cr.P.C. are not meant to nail the accused to his disadvantage but are meant for his benefit. The provisions are based on the salutary principles of natural justice and the maxim audi alteram partem has been enshrined in them. Therefore, an examination under Section 313 Cr.P.C. has to be of utmost fairness.

28. In S. K. Maqsood v. State of Maharashtra [(2009) 6 SCC 583 : (2009) 3 SCC (Cri) 82] and Ranvir Yadav v. State of Bihar [(2009) 6 SCC 595 : (2009) 3 SCC (Cri) 92], this Court held that it is the duty of the trial court to indicate incriminating material to the accused. Section 313 Cr.P.C. is not an empty formality. An improper examination/inadequate questioning under Section 313 Cr.P.C. amounts to a serious lapse on the part of the trial court and is a ground for interference with the conviction.

29. In Suresh Chandra Bahri v. State of Bihar [1995 Supp (1) SCC 80 : 1995 SCC (Cri) 60], this Court rejected the submission that as no question had been put to the accused on motive, no motive for the commission of the crime could be attributed to the accused, nor the same could be reckoned as circumstance against him observing that it could not be pointed out as to what in fact was the real prejudice caused to the accused by omission to question the accused on the motive for the crime. No material was placed before the Court

to show as to what and in what manner the prejudice, if any, was caused to the accused. More so, the appellant-accused was aware of the accusation and charge against him.

30. Thus, it is evident from the above that the provisions of Section 313 Cr.P.C. make it obligatory for the court to question the accused on the evidence and circumstances against him so as to offer the accused an opportunity to explain the same. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance, instead he must show that such non-examination has actually and materially prejudiced him and has resulted in the failure of justice. In other words, in the event of an inadvertent omission on the part of the court to question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court."

19. In the instant case, as stated above, report of the finger print expert

was not even tendered in evidence. None of the witnesses examined

by the prosecution made any mention of the report dated 15.02.2008.

The appellants did not question the I.O. or any other witness with

respect to the report in question. Thus, it cannot be said that the

appellants were not prejudiced by not putting the report dated

15.02.2008 to them in their examination under Section 313 Cr.P.C. In

fact, because of non-tendering of the report in evidence, prejudice is

writ large and in our opinion, the report dated 15.02.2008 cannot be

used against the appellants.

RECOVERIES:-

(a) RECOVERY OF THE DEAD BODY IN A BEDDING

20. There is overwhelming evidence in the shape of testimonies of Laxmi

Narain (PW-1), Kumari Manpreet Kaur (PW-2), Ct. Vikram Singh

(PW-7), Inspector Meera Sharma (PW-21) and various other police

officers that dead body of Harbhajan Singh was recovered from the

gallery near the stairs on the ground floor of C-30, Sawal Nagar.

Inspector Meera Sharma (PW-21) deposed that when she reached the

spot, she found the dead body (of Harbhajan Singh) lying in the

gallery near the stairs on the ground floor of C-30, Sawal Nagar. Head

of the dead body was towards South direction and the legs were

towards the North direction and blood was lying near the head. The

dead body was wrapped in a gadda and a chaddar. The stomach was

tied with plastic rope and legs were tied with a printed chunni. She

inspected the dead body and found the injuries on the right side of the

head, right cheek, lips and both the eyes. She noticed injuries on the

chest which appeared to have been caused by a sharp edged weapon.

The testimonies of these witnesses regarding recovery of the dead

body from the gallery (near the stairs) on the ground floor of C-30,

Sawal Nagar was not disputed or challenged in cross-examination of

these witnesses. It is therefore established that the dead body of

Harbhajan Singh was recovered from the gallery of ground floor of

house no .C-30, Sawal Nagar, Defence Colony, Delhi.

RECOVERIES (B), (C), (D), (E) AND (F):-

21. Inspector Meera Sharma (PW-21) testified that blood spots were

visible at the side wall of the room on the first floor where a folding

bed was lying. She deposed that she found bloodstains on the ply of

the folding bed. She cut the bloodstained wooden ply with the help of

a chheni and hammer, converted it into a pullanda and took the same

into possession after sealing it with the seal of MS. She also scratched

the blood stains from the wall and kept the same in a plastic jar,

prepared the pullanda and sealed it with the seal of MS. She opened

the wooden almirah embedded in the room and recovered one knife

meant for cutting vegetables. The knife was having blood stains. She

measured the knife, prepared its sketch and converted the same into a

pullanda and seized it after sealing the same with the seal of MS.

22. PW-21 testified that the nails of appellant Parminder Kaur were

having bloodstains. Accordingly, nails were got cut with the help of

nail cutter and kept in a plastic jar and sealed with the seal of MS and

seized vide memo Ex. PW-1/13.

23. Although, Laxmi Narain (PW-1) was shaky about the seizure of all

these articles in his examination-in-chief and he testified that the

documents Ex. PW-1/1 to PW-1/13 were signed by him in the Police

Station. In cross-examination by the learned APP, he admitted that the

above stated articles had been seized from the spot.

24. We are not inclined to disbelieve the recovery of all these articles by

the I.O. from the spot simply because PW-1 stated that the seizure

memos were signed by him in the Police Station.

25. However, with regard to the blood present on these articles, the FSL

report was tendered in evidence only by the I.O. Trial Court record

reveals that the exhibit mark (Ex.PW-21/H) was put on the CFSL

report instead of FSL report. Therefore, exhibit mark (Ex.PW-21/H)

has to be read in respect of FSL report. But the same does not make

the report admissible in evidence as the FSL report was prepared by

V. Sankaranarayanan, Senior Scientific Assistant (Biology), FSL

Delhi. The same was not per se admissible under Section 293 Cr.P.C.

as the same was not given by any officer mentioned in Section 293(4)

Cr.P.C. The same could have been proved only by examining the

expert. For the reasons as stated in para 17 earlier, the FSL report

cannot be taken into consideration and hence, the presence of blood of

'B' group on the wall in the room on the first floor, on the ply of the

folding bed, on the recovered knife and on nails of appellant

Parminder Kaur is not established.

26. For this very reason, we are also not inclined to attach much

importance to the recovery of socks and the shirt from appellant

Mandeep Singh, which were claimed to be stained with human blood

but on which blood group could not be deciphered.

(g) CERTAIN MESSAGES AND PHOTOGRAPHS OF THE TWO

APPELLANTS ON THE MOBILE PHONE OF THE TWO

APPELLANTS TO SHOW THAT THEY HAD AN INTIMATE

RELATIONSHIP:-

26. This circumstance shall be discussed by us later while discussing the

circumstance of motive.

MOTIVE:-

27. According to the prosecution, the two appellants had illicit

relationship and therefore, they had a motive to eliminate the

deceased. Apart from producing the CFSL report dated 29.08.2008

with regard to the downloaded data from the mobile phones alleged to

have been seized from the appellants, the prosecution examined Laxmi

Narain (PW-1), Kumari Manpreet Kaur (PW-2), Nirmal Singh (PW-3)

and Smt. Amarjeet Kaur (PW-9) to prove the illicit relationship

between the two appellants.

28. Before adverting to the data downloaded from the mobile phones

purported to have been seized from the appellants, we would refer to

depositions of Laxmi Narain (PW-1), Kumari Manpreet Kaur (PW-2),

Nirmal Singh (PW-3) and Smt. Amarjeet Kaur (PW-9). Apart from

deposing about the presence of appellant Mandeep Singh in the house

of the deceased on 27.10.2007 evening, PW-1 testified that appellant

Mandeep Singh used to visit the house of deceased Harbhajan Singh

often. He stated that deceased Harbhajan Singh had informed him that

he was suspecting illicit relationship between the two appellants and

that his wife used to deny the same on oath. PW-1 was cross-

examined at length on behalf of both the appellants, but no suggestion

was given to him that deceased Harbhajan Singh had not informed

PW-1 about his suspicion of illicit relationship. Similarly, apart from

deposing about appellant Mandeep Singh's visit to their house on the

day of the occurrence and consumption of liquor by the two appellants

and the deceased, PW-2 testified:-

"Mandeep uncle used to (visit) our house frequently (at our house). When our (sic whenever) Mandeep Uncle used to visit at our house, my mother used to send me and my brother in another room.

Relation between my mother and father were not good. They used to quarrel due to Mandeep uncle."

29. Although, PW-2's testimony with regard to appellant Mandeep

Singh's visit to the deceased's house on the day of occurrence was

disputed in cross-examination, yet frequent visits of appellant

Mandeep Singh and appellant Parminder Kaur sending PW-2 and her

brother to another room and the quarrels between the deceased and

appellant Parminder Kaur because of appellant Mandeep Singh were

not challenged in cross-examination. Otherwise also, we do not find

any reason to disbelieve PW-2 who was a girl child of 10-11 years at

the time of occurrence and was mature enough to understand the

relationship.

30. Nirmal Singh (PW-3), the deceased's brother and Smt. Amarjeet Kaur

(PW-9), the deceased's sister have also deposed about complaints

made by the deceased with regard to illicit relationship between the

two appellants, but even if the same is ignored, we see no reason to

disbelieve PWs 1 and 2 from whose testimonies it is established that

the two appellants had illicit relationship and therefore, had a strong

motive to do away with the deceased.

31. As far as downloaded data from the mobile phones allegedly seized

from the appellants is concerned, the same in our view has not been

satisfactorily proved for several reasons. First of all, three mobile

phones (two Nokia and one Indicom) were recovered from the

personal search of appellant Parminder Kumar vide personal search

memo Ex. PW-21/B and one Nokia mobile phone was recovered from

the personal search of appellant Mandeep Singh vide personal search

memo Ex. PW-13/G. Admittedly, these mobile phones were never

sealed by the I.O. either at the time when the same were seized by her

or when the same were deposited in the malkhana. An application

dated 22.01.2008 was moved before a learned Metropolitan Magistrate

for sending the three mobile phones to the CFSL for examination. The

application was allowed by order dated 22.01.2008. In pursuance

thereof, their data was downloaded and a report dated 29.08.2008 was

sent to the Court by the CFSL, Hyderabad. There are certain incoming

messages on phone number 9958373898 alleged to be belonging to

appellant Mandeep Singh which shows that there was an intimate

relationship between him and the person from whom the messages

were received. The number of the mobile phone from which the

messages were received however has not been stated. Investigating

officer, Inspector Meera Sharma (PW-21) in the cross-examination

had stated that one cell phone was recovered from Mandeep and three

cell phones were recovered from Parminder but she did not collect

proof of ownership. Thus, in the absence of proper sealing of the

mobile phones and its deposit in the malkhana there will be some

doubt about the sanctity of the recovery. Apart from these two

lacunae, the prosecution has not produced any certificate under

Section 65B of the Indian Evidence Act, 1872. In the case of State

(NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, it was laid

down that printouts of the information stored in the mobile phone

would be admissible as secondary evidence under Section 63 and 65

of the Evidence Act even if the conditions of Section 65B are not

fulfilled. However, in the instant case, no evidence has been produced

that the mobile phones were in perfect condition. No expert witness

has been examined to testify that he retrieved the data and the same

was true and correct and thus, the printouts placed on record cannot be

taken into consideration even as secondary evidence. That apart, as

stated above, there is sufficient evidence in the shape of oral testimony

of PWs 1 and 2 to establish illicit relationship between the two

appellants and hence, it stands established that the appellants had a

motive to eliminate the deceased. Non proof of the messages is

therefore of no consequence.

LAST SEEN

32. This is the most crucial circumstance and the decision of the appeal

revolves around the same. The prosecution has examined Laxmi

Narain (PW-1) and Kumari Manpreet Kaur (PW-2) to prove this

circumstance. PW-1 deposed that on 27.10.2007 in the evening,

appellant Mandeep Singh had come to the house of deceased

Harbhajan Singh. Harbhajan Singh was also present in the house. He

deposed that altercations used to take place between deceased

Harbhajan Singh, appellant Mandeep Singh and wife of deceased

Harbhajan Singh i.e. appellant Parminder Kaur but on that day he had

not heard any altercation as he had gone to sleep. In cross-

examination, the witness deposed that he was roaming in the backside

gali till about 9:00-9:30 p.m. on 27.10.2007. He used to lock backside

door of his house which was used by the tenants for ingress and egress

at 11:00 p.m. and used to open the same in the morning at about 6:00-

6:30 a.m. The witness denied the suggestion that appellant Mandeep

Singh had not visited the portion in occupation of deceased Harbhajan

Singh on 27.10.2007.

33. Similarly, Kumari Manpreet Kaur (PW-2), the deceased's minor

daughter deposed that on the day of occurrence near the festival of

Karva Chauth, she along with her father, mother and appellant

Mandeep Singh, accused Chanda (since acquitted) and her younger

brother Kulvinder was present in house at C-30, Sawal Nagar. Her

father, appellant Mandeep Singh and her mother Parminder Kaur had

consumed liquor in the night. Appellant Parminder Kaur (her mother)

had sent her and her brother and Chanda to another room after taking

meal. In the morning, police came to their house and showed her dead

body of her father in the stairs. PW-2 was subjected to a very lengthy

and searching cross-examination on behalf of the appellants to elicit

whether she had been tutored by any relation of the deceased. She

stated in cross-examination as under:-

"..... I came to Delhi by train but I do not know the name of train. We stayed at Gurudwara Sis Ganj, Delhi. My uncle Nirmal Singh told me that we had come to Delhi for evidence. Nobody tell (sic told) me what I have to depose in court today. In Delhi I used to study in Govt. School. I used to go to school by foot. My mother and Chanda Didi used to prepare lunch for us. I had met with police aunty (IO) outside the court in the morning when court was not functioning and before recording

statement (12.45 pm) I was with her. IO was talking with me. She told me whatever I have seen I have to depose. IO was asking from me who is my brother, my grandmother or whether someone harassed me or not. It is incorrect to suggest that my aunt Amarjit Kaur working in Punjab police and my uncle Nirmal Singh have tutored me. My relatives in the village did not talk about my mother in my presence. In Delhi after taking meal we used to sleep but I cannot tell exact time. I do not remember at which time (sic) I used to return from school in Delhi. After returning from the school I used to take meal thereafter, I used to watch TV and then used to go to tuition. I used to watch a serial but I do not remember the name of the serial. I used to come back from tuition in day time but I cannot tell the exact time. After coming back from the tuition I used to take meal and thereafter, I used to watch TV before sleeping. On the night of occurrence, I had not watched TV and I had gone for sleeping after taking meal. On that day, after coming from tuition I had watched a serial, name of the serial I do not remember. It is incorrect to suggest that I am deposing at the instance of IO who had influenced me today outside the court during my stay with her for 2 hours. It is incorrect to suggest that I had not seen Mandeep on the day of occurrence in my house. It is incorrect to suggest that I have deposed name of Mandeep on the asking of my visit. It is incorrect to suggest that I am deposing falsely."

34. It may be seen that although the witness was aged only 10-11 years on

the date of incident, but she was mature enough to answer all the

questions. She categorically stated that she came to Delhi for evidence

with her uncle Nirmal Singh. She stated that nobody asked her to

depose in the Court. She gave the details as to how she would go to

the school, how she would take lunch and dinner and how she would

watch TV serials. She was also categorical that she had a word with

the I.O. and that I.O. had told her to depose whatever had been seen by

her. Apart from a bald suggestion that appellant Mandeep Singh had

not visited the deceased's house on the day of the occurrence, nothing

was elicited which could shake PW-2's testimony. There was no

reason for PW-2 to have falsely deposed about the visit of appellant

Mandeep Singh to their house and the factum of consumption of

liquor by the two appellants and the deceased. This is further fortified

from the recovery of the vodka bottle and beer can from the dustbin by

the I.O. on the morning of 28.10.2007.

35. Referring to the cross-examination of PW-1, the learned counsel for

appellant Mandeep Singh has very strenuously canvassed that he (PW-

1) admitted that he used to lock the backside door of his house at

11:00 p.m. and would open the same at 6:00/6:30 a.m. He admitted

that this was the only way available to the tenants for egress and

ingress to the house. He admitted that he had locked the said door on

27.10.2007 also at 11:00 p.m. The learned counsel for appellant

Mandeep Singh urges that if testimony of PW-1 is accepted, there was

no way for appellant Mandeep Singh to have escaped from the house

after committing the crime. The learned counsel refer that the cross-

examination clearly reveals that appellant Mandeep Singh was not

present in the house on 27.10.2007.

36. We do not agree. PW-1 has deposed about the routine things which he

used to do every day, one of which was to lock the rear door. The rear

door of the house was being used by the tenants. No question was

asked to PW-1 about the front/main entrance. Even if the main

entrance was not meant for the tenants, appellant Mandeep Singh

could have escaped from the main entrance after commission of the

crime. In any case, we are not inclined to discard the credible

testimony of PWs 1 and 2 simply on account of PW-1's statement that

the rear entrance which was meant for the tenants was locked by him

at 11:00 p.m. on 27.10.2007.

37. It is urged by the learned counsel for the appellants that the last seen

evidence is a weak type of evidence. In the instant case, time of death

was not firmly established. Relying on Ramesh v. State of NCT of

Delhi, 2013 (1) JCC 50, and State v. Arun, 2013 (4) JCC 2492, the

learned counsel for appellant Mandeep Singh urges that appellant

Mandeep Singh cannot be held to be guilty on the shaky last seen

evidence particularly when there is no proximity of time when

appellant Mandeep Singh was allegedly last seen in the company of

the deceased and the time of deceased's death.

38. We are not inclined to agree with the submission that circumstance of

last seen in the present case is a weak evidence. If proximity of time

and place is established and it is shown that the offence could not have

been committed by any other person, conviction can be based on the

sole circumstance of last seen evidence as well.

39. Turning to the facts of the instant case, the two appellants and the

deceased were together on the first floor of house no. C-30, Sawal

Nagar, Defence Colony, Delhi on the night of 27.10.2007. The

appellant Parminder Kaur and deceased used to reside on the first

floor in the said house. It is established that the two appellants and the

deceased were consuming liquor at night when Kumari Manpreet

Kaur (PW-2) and her younger brother Kulvinder Singh had been sent

to another room by appellant Parminder Kaur.

40. Dead body of Harbhajan Singh was discovered by PW-1 and PW-7 on

28.10.2007 at about 05:45 a.m. Autopsy on the dead body of

Harbhajan Singh was conducted by Dr. Adarsh Kumar (PW-12) who

prepared the post-mortem report Ex. PW-12/A. As per the post

mortem report, the post mortem was started on 29.10.2007 at about

03:30 p.m. and the time since death was given as 1½ days. Thus, the

approximate time of death was about 3:30 a.m. on 28.10.2007.

Admittedly, appellant Parminder Kaur is the wife of the deceased. She

was residing with the deceased in house no. C-30, Sawal Nagar and as

stated earlier, she was very much present with her husband on the

night of 27.10.2007 and the time of death is in close proximity to the

time when the deceased was seen alive along with two appellants.

Thus, the contention raised on behalf of the appellants that the time of

death had not been established is fallacious. The time of death as per

oral evidence could be after 11:00 p.m. on 27.10.2007 (when

Harbhajan Singh was alive) and before 05:45 a.m. on 28.10.2007

when the dead body was discovered and the time of death as per the

post-mortem report Ex. PW-12/A is about 03:30 a.m. on 28.10.2007.

Thus, there is close proximity of time when the deceased was seen

alive in the company of the two appellants and the time when the

deceased was found dead. The appellants were together with the

deceased in the same house wherefrom the dead body was recovered.

41. In Amit @ Ammu v. State of Maharashtra, 2003 (8) SCC 93, the

accused was convicted primarily on the basis of last seen evidence. In

Amit @ Ammu the facts were:-

"2. On Ex. 28, it has been recorded that on 29-3-2001, PW1 accompanied by Ajay, PW11, had gone to the rear portion of a place known as Gaimukh for grazing she-buffaloes. One of the buffaloes went into a dilapidated building close by. In order to drive out that animal on going inside, he noticed the dead body of a school girl in school uniform lying in supine condition. He informed the police. The two police officials came to the site along with him. The said unidentified girl was seen by him the previous day as well in the forest in the area where he usually goes for grazing of the animals. At that time she was in the company of a boy aged about 20 years. She was carrying a school bag. At that time too, PW11 was with PW1. The description of the boy has also been given. The said boy was having with him a bicycle like that of Ranger type. The boy on being asked gave his name as 'Gandhi' and stated that the name of the accompanying girl is Vidya who was his sister and as her family members were going to come to Devi Temple, he had brought her directly from her school. Both were brought to the road and they went away sitting on the bicycle. The girl seen by PW1 and PW11 was the same whose body had been found. The investigation led to the arrest of the appellant at 11.00 p.m. on 29-3-2001".

42. On the basis of the post mortem examination, the time of death in that

case was found to be 03:00-04:00 p.m. on 29.03.2001 which was just

about the time when the appellant and the deceased were last seen

together by PW-1 and PW-11. No explanation was offered by the

Appellant (in that case) in his statement recorded under Section 313

Cr.P.C. His defence was of complete denial. Relying on Mohibur

Rahman v. State of Assam, 2002 (6) SCC 715, the Supreme Court

observed that there may be cases where on account of close proximity

of place and time between the event of the accused having been last

seen with the deceased and the factum of death, a rational mind may

be persuaded to reach an irresistible conclusion that either the accused

should explain how and in what circumstances the victim suffered the

death or should own the liability of the homicide.

43. In Amit @ Ammu (supra), the deceased the accused were seen

together on a road whereas in the instant case the dead body has been

recovered from that very house where the two appellants were present

with the deceased.

44. Similarly, recently in Dharminder Singh @ Vijay Singh v. State,

(2013)12 SCC 263, the appellant's conviction for the offence under

Section 302 IPC was upheld mainly on the basis of last seen evidence.

In paras 17 and 18 the Supreme Court held as under:-

"17. Due consideration of the evidence on record makes it abundantly clear that in the present case the prosecution has proved that on 26-8-2000 at about 4.30 p.m. the appellants and two other co-accused were in the van driven by deceased Krishan Kumar and that they had hired the said van to go to Haridwar. On the next morning at about 10.00 a.m. the dead body of Krishan Kumar (subsequently identified by PWs 11 and 12 on the basis of photographs taken before the cremation) was recovered from under a bridge at a place near Haridwar. The appellant-accused were apprehended along with the vehicle at Purnia in Bihar on 29-8-2000. They had failed to give any

explanation for their presence in Purnia and also as to what had happened to Krishan Kumar who was driving the vehicle hired by them on 26-8-2000 to go to Haridwar. In view of the very close proximity of the time between the accused and the deceased being seen together (4.30 p.m. of 26-8-2000) and the recovery of the dead body (10 a.m. of 27-8-2000) it was necessary for the accused to offer a reasonable explanation as to what had happened to the deceased Krishan Kumar with whom they had gone to Haridwar in the previous evening. The accused could not have opted to remain silent. They were duty- bound to give adequate and reasonable explanation as regards the events that had taken place at Haridwar and the circumstances in which they had parted company with the deceased. In their statement recorded under Section 313 CrPC the accused while admitting that they were arrested at Purnia in Bihar had given no explanation whatsoever as to what had happened at Haridwar and to Krishan Kumar and under what circumstances they had gone to Bihar without him.

18. Applying the law consistently laid down by this Court including the principles noticed in Vadlakonda Lenin [Vadlakonda Lenin v. State of A.P., (2012) 12 SCC 260] to the facts of the present case, we are left with no doubt whatsoever that the circumstances proved by the prosecution, in the absence of any reasonable explanation on the part of the accused, cannot give rise to any other conclusion except that it is the accused alone who had abducted the deceased Krishan Kumar and had killed him at Haridwar. We, therefore, have to conclude that the conviction of the appellant-accused does not call for any interference....."

45. In Ashwani @ Sonu v. The State (NCT of Delhi), 2013 (137) DRJ 10,

the appellant was convicted for the murder of his wife and the

conviction was upheld mainly on the basis of last seen evidence and

the fact that the relations between the husband and the wife were not

cordial, the Division Bench analysed the facts and applying the

principle of last seen held as under:-

"15. The accused was lastly seen in the company of deceased on 4th February, 2004 at 6:30 p.m. as he along with deceased had gone to her parents' house after their quarrel who settled their disputes, pacified them and sent them back to the house after advising that they should inform them telephonically in case there is any further quarrel between them. The factum of having last seen the accused with the deceased at 6:30 pm on 4th February, 2004 stands duly proved from the testimony of PW-1 Satish Kapoor and PW-2 Sh. Sanjay Kapoor which fact has nowhere been disputed by the accused. Satish Kapoor, PW-1 being father of the deceased undoubtedly was worried about well being of his daughter, therefore, on next day, i.e., 5th February, 2004 he preferred to visit her house and found the gate locked. Two calls were made by him to accused but no response was received. Again in the evening at 5:00 p.m. he came back to the house of his daughter along with his son PW-2 Sanjay Kapoor and found the iron gate locked. However, the inside wooden gate was slightly ajar. He peeped through it and it seemed to him that somebody was sleeping inside whereupon he knocked the door and shouted but finding no response, he became suspicious and made a call at 100 number whereupon police officials reached and broke the lock of the gate and after entering the house, they found one person lying on the double bed whose body was covered with quilt and on removing the quilt, the dead body was identified to be of Sonia. It cannot be lost sight of that accused and deceased were husband and wife and were residing in the house where the dead body was recovered. It has come on record that they had two daughters. Younger daughter was given in adoption by accused at the time of her birth, however, as regards elder daughter, no evidence

has come on record as to where she was residing. Fact remains that it is not disputed by the accused that except for him and deceased none else was residing in the dwelling house from where the dead body was recovered. That being so, after they returned from the parents' house of the deceased on 4th February, 2004, at 6:20 p.m., in normal course of events, the accused would have returned to his house. If from the parents' house of deceased, the accused did not return home till he was arrested by the police then it was a fact within his special knowledge which he was required to explain. But absolutely no explanation has been given by him as to where he was during this entire period. Rather his own conduct is reflective of his guilty mind inasmuch as the house was found locked from outside, key of which was ultimately recovered at his instance from back side of scooter parked under the staircase of the house. Moreover, when he was arrested, his personal search was conducted vide memo Ex. PW2/B, one chain of golden colour, three rings of golden colour, one pair of ear tops of golden colour were recovered which were presumably of the deceased. Further, it was suggested to PW-13 Inspector Jaipal Singh and PW-14 ACP Krishan Kumar that accused had gone to surrender himself in the police station. Although this suggestion was denied by them but since, such a suggestion was given by the accused in the cross-examination of the witnesses, he is bound by the same and if that is so, then, it is not explained as to how the accused came to know about the murder of his wife and why he himself wanted to surrender in the police station. The failure on the part of accused to furnish any explanation on the aforesaid facts lends support to last seen theory propounded by prosecution. The submission of learned defence counsel that the fact whether the accused returned back to his house or not could have very well been proved by neighbours on investigation being done with due diligence is devoid of any substance because it is common experience that public persons are generally reluctant to join police proceedings. Moreover, experience tells us that in

big cities like Delhi where life is otherwise very busy, nobody wants to interfere in the affairs of others. Even otherwise, since it was the matrimonial home of deceased, the neighbours would be least concerned as to whether the accused returned back to the house on the night of 4th February, 2004 or not and if so, at what time and when did he leave the house in the morning of 5th February, 2004. At the cost of repetition, it may be mentioned that these facts were in the special knowledge of the accused which he was required to explain but failed.

16. The other limb of argument that as per post-mortem report, time of death comes at 11:00 a.m., father of deceased visited her house at 10:00 a.m. and knocked the door then, at that time Sonia must be alive, why did she not respond to the calls, meaning thereby that somebody must have come during the period 11:00 a.m. to 5:00 p.m. and committed her murder is again devoid of merit inasmuch as, as per the post-mortem report, Ex. PW-12/A conducted by Dr. V.K. Jha, it started at 1:00 p.m. and as per the opinion of the doctor, time since death was approximately 26 hours. From this, learned counsel for the appellant wants the Court to believe that the death had taken place at about 11:00 a.m. In Pattipati Venkaiah v. State of AP, 1985 SCC (Cri) 464, it was held by Hon'ble Apex Court that medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerised or mathematical fashion so as to be accurate to the last second. Similar view was taken in subsequent judgments reported as Dasari Shiva Prasad Reddy v. Public Prosecutor, High Court of AP (2004) 11 SCC 282, RamaReddy Rajesh Khanna Reddy v. State of AP (2006) 10 SCC 172, Rakesh v. State of Madhya Pradesh, (2011) 9 SCC 698. In view of the same, coupled with the fact that even the doctor in the post-mortem report has given the time since death as "approximately" 26 hrs., it cannot definitely be said that the death had taken place at 11.00 a.m. and not at 10:00 a.m. when the father of the deceased had come to her house. Even otherwise, the door of the house

was locked from outside, key of which was ultimately recovered at the instance of accused. This leads to the only irresistible conclusion that it was the accused only, who, after committing the ghastly crime of murdering his wife left the house after locking the same and even when PW-1 Satish Kapoor made two calls to him, he did not respond."

46. On the basis of the evidence adduced by the prosecution and on the

test of close proximity on time and place, we are satisfied that it were

the appellants and the appellants alone who had committed the

gruesome murder of deceased Harbhajan Singh on the night

intervening 27-28.10.2007.

47. We have already held earlier that there was illicit relationship between

the two appellants and they had a motive to commit the deceased's

murder which provides an additional link to the circumstance of last

seen.

48. It may also be noticed that there were 29 serious injuries on the person

of the deceased which again, could not be the handiwork of appellant

Parminder Kaur. Presence of so many serious injuries points to the