Delhi High Court
Sheetal vs State on 27 July, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on : May 24th, 2018
Date of Decision : July 27, 2018
+ CRL.A. 126/2018
SHEETAL ..... Appellant
Through: Mr. Joginder Tuli with Mr. Ashu
Kumar, Ms. Joshini Tuli and Ms.
Divya Jangid, Advocates
versus
STATE ..... Respondent
Through: Ms. Aasha Tiwari, APP for the State
AND
+ CRL.A. 247/2018
INDERJEET SINGH ..... Appellant
Through: Mr. K. Singhal, Mr. Nishant
Bhardwaj, Advocates
versus
STATE ..... Respondent
Through: Ms. Aashaa Tiwari, APP for the State,
SI Sandeep Kumar, PS Alipur
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE P.S.TEJI
JUDGMENT OF THE COURT
1. The present Criminal Appeals have been filed by the
appellants- Sheetal (Crl.A. 126/2018) and Inderjeet Singh (Crl.A.
Nos.247/2018 ) under Section 374(2) Cr.P.C. against the common
judgment of conviction dated 23.12.2017 and common order on
sentence dated 29.01.2018 passed by learned Additional Sessions
Judge, Rohini Courts, Delhi whereby, the appellants have been
convicted under Section 302/120B IPC. For the offence punishable u/s
120B IPC, the appellants have been sentenced to undergo rigorous
imprisonment for a period of five years each and a fine of Rs. 5000/-
each and in default of payment of fine, they shall undergo simple
imprisonment for one month each. They have been further sentenced
to undergo life imprisonment for the offence punishable u/s 302 IPC
and a fine of Rs. 25,000/- each, and in default of payment of fine, they
shall undergo simple imprisonment for a period of six months each.
Both the sentences were ordered to not run concurrently.
2. It is the case of the prosecution that on 28.02.2014, upon
receiving information through a PCR call, Vide DD No. 7A that a
dead body was seen lying near a water tank at Pusta Road, Thokar No.
13, in a field near Jhangola Village, SI Jaibeer and Const. Rajbir
reached the spot. Insp. Mahesh Kumar on getting the information also
reached the spot along with SI Kamlesh, HC Praveen and HC
Ramesh. They found that a dead body of a male Sikh aged about 45
years was lying there. It appeared to them that due to heavy impact
the body was crushed, and blood was also lying near the head of the
deceased. The dead body was lying near a berry tree and bushes, in
which a blood-stained stone was lying. The deceased was wearing a
grey colour pant, a jersey and a white coloured striped shirt, and was
also wearing a hawai slippers of green and white colour. Half of the
face of the deceased was covered with a black coloured turban. The
scene of crime was got examined by the crime team and the
photographs were taken. As per the report of the crime team Ex PW-
4/A, the right eye and the forehead of the deceased were having injury
marks and one Driving License (DL No. 0120100066867) and cash
worth Rs.800/- was recovered from the inner pocket of the deceased's
pant. The name and address mentioned on the Driving License was of
one Satwant Singh, S/o Narottam Singh, R/o H.No. 3566/2011, Gali
No. 95, B-Block, Sant Nagar, Burari. There was no eye witness at the
scene of crime. It appeared that the deceased was killed by a stone,
which was lying in the bushes nearby and was stained in blood.
Accordingly, the case was registered under section 302 IPC.
3. During the investigation, dead body of the deceased was
sent to BJRM Hospital and the body of the deceased was preserved
for 72 hours. The blood- stained stone, blood near the head and blood
stained earth were lifted and were sealed in different pullandas and the
same were taken into possession. The driving Licence and Rs.800/-
recovered from the possession of the deceased were also seized by the
police. Thereafter, the case was got registered under section 302 IPC.
Thereafter, the statement of the informant Ved Pal- PW6 was recorded
under section 161 Cr.P.C. The son of the deceased, namely, Napinder
Singh @ Nonu- PW3 and the brother of the deceased, namely,
Sanjeev S/o Narotam Singh identified the deceased in the mortuary of
BJRM Hospital vide EX PW-5/A and disclosed that his name is
Satwant Singh S/o Narotam Singh R/o H.No. 3566/11 Gali No. 95B,
Sant Nagar, Burari which was also mentioned in the driving license
recovered from the deceased.
4. The IO obtained the mobile numbers of the wife of the
deceased Sheetal @ Kamaljeet Kaur i.e., the accused No. 2 and the
CDR of the same were also called. On 01.03.2014, the Post Mortem
of the deceased Satwant Singh was conducted at BJRM Hospital. In
the Post Mortem report EX PW- 15/1, the doctor opined that "Death
was due to cranio - cerebral damage, consequent upon multiple
injuries to the head. All injuries were ante mortem, fresh in duration.
Injury No. 1 is caused by hard heavy blunt object like stone, injury
NO. 2, 3 and 4 could be caused by hard blunt object like Rod or like
weapon. Injuries, sufficient to cause death in ordinary course of
nature".
5. On 02.03.2014, the brother of the deceased recorded his
supplementary statement under section 161 Cr.P.C EX PW-5/B &
5/C. He alledged that his sister-in-law Sheetal @ Kamaljeet Kaur-A2,
had illicit relations with her neighbor, Inderjeet Arora- A1. He further
stated that the deceased and his wife had quarrels regularly. He
suspected that this was the cause of his brother's murder. On
03.03.2014 the neighbor, Inderjeet Arora-AI was arrested vide arrest
memo EX PW-9/D. On his interrogation, the suspect Inderjeet Arora
allegedly confessed that he had illicit relations with the wife of the
deceased Sheetal @ Kamaljeet Kaur. He is claimed to have stated that
in the afternoon of 27.02.2014, he along with the co-accused- Sheetal
and the brother of the co-accused- Sheetal viz. Harender Singh- PW8
had gone to Nirankari Park and had planned the murder of the
deceased. Sections 120B/34 of the IPC were added in the case. He
further stated that he had asked the deceased to accompany him for a
drive. After some time, the appellant- Inderjeet stopped the car to
urinate. When the deceased was urinating, the appellant- Inderjeet hit
him with a rod from behind at the back of his head and then put his
body back in the car. Thereafter, upon seeing a vacant area, he
dumped the body of the deceased at the spot from where it was
recovered.
6. During investigation, Inderjeet Arora pointed out the
place of incident, and his car bearing registration No. HR-55KT-7689
Ritz, on which a fake number plate bearing no. DL-3CK-0548 was put
up and the same number was used during the murder of the deceased.
The keys, RC, and the original No. plate of the car which was
replaced intentionally, was recovered from the house of Inderjeet
Arora. The blood- stained clothes which were worn by Inderjeet Arora
were also recovered from behind the almirah in his room. The mobile
phone of Inderjeet Arora having mobile No. 9958433349 was got
recovered. From the place of occurrence, about ten to twelve steps in
the East direction, a blood- stained iron rod was got recovered from a
wheat field. The bloodstained seat covers of his car, which was used
during the commission of the offence, were also recovered. The same
were sealed in different pullandas. Section 482 IPC was also added to
the case.
7. On 04.03.2014, the wife of the deceased
[email protected] Kaur-A2 was also arrested vide arrest memo EX
PW- 10/1. After performing the last rites of the deceased, the wife of
the deceased confessed that she had planned the murder of her
husband and that on 27.02.2014, she alongwith Harinder-PW8 had
gone to the Nirankari Park on a motorcycle and met the accused
Inderjeet Arora there and subsequently planned the murder of the
deceased. The mobile phone used by the accused Sheetal for holding
conversations with Inderjeet Singh was got recovered. On 05.03.2014,
Harinder s/o Samarpal Singh was roped into the investigation. He
confessed that in the afternoon of 27.02.2014, he along with his sister
Sheetal @ Kamaljeet Kaur A-2 had gone to the Nirankari Park on a
motorcycle where his sister A-2 and Inderjeet Arora A-1 had spoken
in private. His statement was recorded u/s 161 Cr.P.C. The CCTV
cameras installed in the Nirankari park had captured the footage
where Sheetal and Inderjeet Arora had met. The police took the
footage in their possession.
8. On 13.03.2014, a subsequent opinion was taken from the
autopsy surgeon regarding the heavy blood- stained stone and the
blood stained iron rod and the Dr. stated that "The Injury No.1 could
be possible due to above examined stone, and injury no.2,3 and 4
could be caused by above mentioned iron rod".
9. During the investigation, the call details of the mobile
phone number of the deceased Satwant Singh, and his son
[email protected] were called for and checked. After the call detail
analysis was done, it was discovered that the accused
[email protected] Kaur-A2 had called the co- accused from her
mobile phone no. 7838025834 on his mobile phone no. 9958433349.
As per the case of the prosecution, on the day of incident, accused
[email protected] Kaur-A2 had taken with her the mobile phone no.
9811675493 of the deceased Satwant Singh on purpose, and had given
to the accused, the mobile phone No. 9654522842, which was usually
kept at her home and was used for home purposes, so that the location
of the accused Inderjeet appears to be near his house, as subsequently
claimed by Inderjeet. On 27.01.2014, accused Inderjeet Arora had
called the accused [email protected] Kaur to inform her that Satwant
Singh had been killed. Thereafter, [email protected] Kaur had
called her family members and complained to them that Satwant
Singh has not returned home since evening on a false pretext, and to
mislead them. On 16.05.2014, Section 201 IPC was further added in
the case. On completion of investigation, charge sheet was filed in
the Court.
10. Charge for the offence under Section 302, 120B, 34 IPC
was framed against both the appellants, to which they pleaded not
guilty and claimed trial.
11. To prove its case, the prosecution examined 24 witnesses
including, Mr. Napinder [email protected] (PW3)- Son of the deceased,
Sh. Rajeev Singh (PW5)- Brother of the deceased, Mr. Harinder Singh
(PW8)- Brother-in-law of the deceased, Sh. Sohan Lal (PW13)- Car
washer.
12. After completion of prosecution evidence, statement of
the accused persons under Section 313 Cr.P.C. was recorded, in which
they claimed innocence and denied the entire case of the prosecution.
The accused persons examined three defence witnesses namely,
Govind Lal Arora (DW1)- Uncle of Inderjeet, Sh Tarun Arora
(DW2)- Younger brother of Inderjeet, and Ms. Taranjeet (DW3)-
Daughter of the deceased.
13. On appreciation of evidence and material brought on
record, the trial court convicted the appellants under Section 302 and
120B IPC vide impugned judgment dated 23.12.2017 and order on
sentence was passed on 29.01.2018. Feeling aggrieved of the same,
the appellants have preferred the instant appeal against their
conviction under Section 302/120B IPC.
14. Learned counsel for the appellant- Sheetal @ Kamaljeet
Kaur has argued that in the cross examination of the brother of the
deceased Sh Rajeev Singh (PW5), he stated that his sister- in- law
[email protected] Kaur had confessed to him that she had an illicit
relationship with the accused Inderjeet Singh, and that is the reason
why she had planned the murder of his brother along with the accused
Inderjeet, so as to remove the obstacle in their illicit relationship in
the meeting which took place at Nirankari Park. Thus, as per the
testimony of PW5, the appellant Sheetal had made an extra-judicial
confession of her involvement in the crime to PW-5. Ld. Counsel
submits that the said extra judicial confession is not established, since
there is no corroboration of the same. On the contrary it is pointed out
that PW8 had accompanied the accused Sheetal to Nirankari Park, and
PW8 in his cross examination stated that he had remained with the
accused [email protected] Kaur throughout, when
[email protected] Kaur had gone to the Nirankari Park on
27.02.2013 along with him. PW8 in his cross- examination denied that
he was sent away on the pretext of getting a bottle of water and,
therefore, the offence u/s 120B is not made out. Since the accused
Sheetal @ Kamaljeet Kaur has been implicated only on the basis of
conspiracy, which has not been established between the two accused
persons, Sheetal is liable to be acquitted.
15. To support this argument, Ld. counsel has referred to Ex.
PW 5/B- the further statement of Rajiv Singh PW-5 under Section
161 Cr.P.C, where PW5 states that there used to be frequent quarrels
between the Appellant and his deceased brother. PW5 further alleged
that Sheetal and Inderjeet had illicit relations and that he suspected
Inderjeet to be responsible for the murder of his brother, Satwant
Singh. However, PW5 in his testimony recorded before the Court was
wavering. In his cross examination, PW5 did not support his claim of
the alleged extra marital affair of his sister in law, appellant- Sheetal
herein, or of the conspiracy. Learned counsel further argues that the
calls between both the Appellants do not conclusively establish the
fact that Sheetal had any extra marital affair, or was party to any
conspiracy to commit the murder of the deceased. He further argued
that as per the malkhana register Ex PW12/3, the recovery of the
Karbon Mobile Phone of black colour- used by the appellant-
[email protected] Kaur to call her husband- the deceased, and
Inderjeet Singh Arora, was deposited on 03.03.2014. However, the
seizure memo of the same is of 04.03.2014 and that this creates a
doubt in the recovery of the mobile phone and the prosecution story.
16. Learned counsel for the appellant Inderjeet Arora submits
that SI Kamlesh, who is a witness to the recoveries has not been
examined. Thus, the recoveries attributed to the accused Inderjeet
Arora are doubtful and probablise the defence that they are planted.
Learned counsel further submits that the Call Detail Record of the
mobile phone of the deceased and the mobile phone instrument were
not produced, which could have established his location and
movement. He submits that the said failure raises a presumption
against the prosecution under section 114(9) Evidence Act. He has
placed reliance on Umesh Kumar vs State 2017 SCC Online Del
11490 to press the contention that in cases of circumstantial evidence,
the prosecution is bound to prove the entire chain of circumstances
beyond reasonable doubt. Learned counsel has further relied upon the
judgments in Prabhoo Vs State of Uttar Pradesh, (1963) 2 SCR 881;
Raj Kumar @ Raju vs State, 2010 SCC Online Del 2014; Oliver
Kujur & Anr. Vs State of Delhi 2014 SCC Online Del 3017; Mohd.
Shahid vs State, ILR (2014) III Delhi 2282 to argue that the recovery
of blood stained clothes at the instance of the accused Inderjeet Arora
is an extremely weak piece of evidence. To counter the case of the
prosecution that the DNA of the samples drawn from the recovered
clothes of accused Inderjeet; the iron rod; the stone, and; the seat
covers of the car of the accused Inderjeet matched with the DNA of
the deceased, reliance is placed on Premjibhai Bachubhai Khasiya vs
State of Gujrat & Anr., 2009 SCC Online Guj 12076, wherein it was
observed that even where the DNA samples match, by itself, that
would not be sufficient to draw the conclusion of guilt. However, if
the DNA samples do not match, it is now fairly accepted that the
accused would be entitled to the benefit of the doubt. Learned counsel
also places reliance on Sameer @ Mustakim vs State Crl.A. No.
17/2018, in which this Court acquitted the appellant since the
recovery of weapon of offence was doubtful.
17. While defending the impugned judgment, learned APP
Ms. Aasha Tiwari has argued that the accused Inderjeet, in his
statement Ex. PW 9/G had disclosed about his role and had also led
the police party to get recovered the car used with the fake number
plate; car key and the RC of the car vide Ex. PW9/H; the original
number plate vide Ex PW9/J; his blood stained clothes vide Ex.
PW9/K; the blood stained seat covers of the car vide Ex. PW 9/L, and;
the iron rod vide Ex. PW9/M. She further submits that the DNA of the
blood on the stone recovered from the bushes Ex. PW9/A, matched
with the DNA of the deceased vide the FSL report Ex. PW23/2. She
submits that the blood- stained stone had 3-4 hair strands, DNA of
which has also been matched with the DNA of the deceased vide Ex.
PW23/2. She has placed reliance on State Govt of NCT of Delhi vs
Sunil and Another, 2000(7) SCALE 692, to argue that that the non
involvement/joining of independent witness is not fatal to the case of
the prosecution.
18. We have heard Ld. Counsels and have given our
thoughtful consideration to the matter.
19. The contention raised by the counsel for the appellant
Sheetal is that the recovery of the Mobile Phone of the appellant
Sheetal, which she used to call her deceased husband and accused
Inderjeet Singh Arora is doubtful, as the same was allegedly seized on
04.03.2014, but the same was shown to have been deposited in
malkhana one day earlier on 03.03.2014.
20. The Arrest Memo of the appellant Sheetal Ex.PW10/1
shows that her arrest was effected at her place of residence i.e., H. No.
3566/11, Gali No. 95, B Block, Sant Nagar, Burari, Delhi on
04.03.2014 at 9:30 a.m. The recovery made, with respect to the
incident, on the personal search of Sheetal includes a mobile phone of
Sheetal which was seized vide memo Ex.PW24/6. As recorded in the
malkhana register vide entry Ex.PW12/2, the recovery of the mobile
phone of appellant Sheetal was of 03.03.2014, but the seizure memo
Ex.PW24/6 shows that it was seized on 04.03.2014 which creates a
doubt in the recovery of the mobile phone of Sheetal. We find merit
in this submission of the appellant Sheetal. Thus, the recovery of the
mobile phone instrument of accused Sheetal cannot be relied upon by
the prosecution.
21. On appreciation of the evidence brought on record, we
are of the view that the alleged conspiracy between Sheetal and
Inderjeet has not been established. The said conspiracy is alleged to
have been hatched on account of the illicit relationship between the
two accused. That relationship itself has not been established, as the
only evidence relied upon in this regard are the CDRs of the mobile
phones of the two accused. A scrutiny of the CDR of the accused
Inderjeet Arora (Ex.PW-20/2) shows that the following calls were
made between the two accused having mobile phone numbers
(Inderjeet- 9958433349) & (Sheetal 7838025834) between 15.02.2014
to 21.02.2014:
Date Duration Time
15.02.2014 119 seconds 08:54:56
42 seconds 19:24:40
17.02.2014 526 seconds 08:22:04
18.02.2014 176 seconds 18:16:54
19.02.2014 31 seconds 20:10:27
21.02.2014 20 seconds 20:19:57
132 seconds 20:52:27
22. Ex. PW-20/2- which is the CDR of the mobile phone of
the accused Inderjeet Arora in respect of mobile phone number
9958433349, shows that after 21.02.2014, no call was exchanged
between them till 27/28.02.2014, or even thereafter by using the said
mobile numbers. The prosecution has not led in evidence any other
CDRs of other mobile connections allegedly used by them. Thus,
there is nothing placed on record to claim that the two accused were in
regular touch with each other while putting their conspiracy into
action.
23. The said position is evident from the CDR of the accused
Sheetal Ex. PW-21/2 as well. Thus, no call was exchanged between
the two accused by use of their respective mobile phones brought on
record after 21.02.2014, even though the homicide of the deceased
took place on the night on 27/28.02.2014. Though, the CDR of the
accused Sheetal Ex. PW-21/2 has been obtained only till 26.02.2014,
the CDR of the accused Inderjeet Arora Ex. PW-20/2 till 01.03.2014
has been brought on record. Even after the death of the deceased on
the night of 27/28.02.2014, it appears that no calls were exchanged
between the two accused till 01.03.2014, as would have been expected
had there been the conspiracy between them to commit murder of the
deceased. Thus, the CDR of the two accused does not establish a
criminal conspiracy between them to commit murder of the deceased.
We may also observe that most of the calls exchanged between the
two accused were of relatively short duration, which also contra-
indicates the hatching of a conspiracy between the two accused to
commit such a serious crime.
24. No doubt, PW5-Rajeev in his statement recorded under
Section 161 Cr.P.C. vide Ex.PW5/B, stated that there used to be
frequent quarrels between his deceased brother and Sheetal, and that
Sheetal had confessed to the police, after the last rites of his deceased
brother, that she and Inderjeet had illicit relations and that the
deceased was murdered in association with Inderjeet. However, as
rightly pointed out by the learned counsel, PW5 in his statement
before the court has wavered and his testimony is a complete flip flop.
25. PW24-ACP Jitender Singh in his deposition stated that
on 02.03.2014, Sh. Rajiv Singh (PW5) brother of deceased had come
to the PS and had made a statement u/s 161 Cr.P.C wherein he had
"suspected" the wife of deceased to be behind the murder of deceased.
Had Sheetal confessed to PW-5 regarding her alleged illicit
relationship with accused Inderjeet, and about her conspiring with
Inderjeet to kill the deceased, and about the murder of the deceased by
Inderjeet, PW-5 would not have conveyed only his suspicion to PW-
24. In fact, he would have made a frontal and direct accusation against
the accused to PW-24. That was not done, which renders the theory
of an extra judicial confession by the accused Sheetal, doubtful. PW5-
Rajeev Singh in his cross examination denied the suggestion that there
used to be frequent quarrels between Satwant Singh and Sheetal.
Hence the case of the prosecution that Sheetal had an illicit
relationship cannot be said to have been conclusively established.
26. Thus, apart from the extra-judicial confession made by
Sheetal, there is nothing on record to show that she was a part of the
conspiracy of the murder of her husband. We may also observe that
even if it were to be accepted that there was some illicit extra marital
relationship between the two accused that, by itself, does not prove
the hatching of conspiracy between the two accused to commit the
murder of the deceased. The aspect of conspiracy would need
examination independently on the strength of the evidence led by the
prosecution.
27. It is settled law that extra judicial confession is a weak
piece of evidence. It has to be dealt with utmost caution and needs
corroboration. It is also settled law that an extra-judicial confession
can be made the basis of conviction, but due care and caution must be
exercised by the Courts to ascertain the truthfulness of the confession.
Before the Court proceeds to act on the basis of an extra-judicial
confession, the circumstances under which it is made, the manner in
which it is made and the persons to whom it is made must be
considered along with the two rules of caution. It has to been seen
whether the evidence of confession is reliable, and whether it finds
corroboration.
28. In S.Arul Raja v. State of Tamil Nadu, (2010)8SCC233,
it was observed that the concept of an extra-judicial confession is
primarily a judicial creation, and must be used with restraint. Such a
confession must be used only in limited circumstances, and should
also be corroborated by way of abundant caution. The Supreme Court
while relying upon Ram Singh v. Sonia and ors. (2007) 3 SCC 1, has
observed that when there is a case founded on an extra-judicial
confession, corroborated only by circumstantial evidence, then the
Courts must treat the same with utmost caution. The said principle
was affirmed in Ediga Anamma v. State of AP, (1974) 4 SCC 443
and State of Maharashtra v. Kondiba Tukaram Shirke, (1976) 3
SCC 775. While relying upon Pakkirisamy v. State of T.N., (1997) 8
SCC 158, at page 162, in which it was observed that:
"8. ...It is well settled that it is a rule of caution
where the court would generally look for an
independent reliable corroboration before placing
any reliance upon such extra-judicial confession.
It is no doubt true that extra-judicial confession
by its very nature is rather a weak type of
evidence and it is for this reason that a duty is
cast upon the court to look for corroboration
from other reliable evidence on record. Such
evidence requires appreciation with a great deal of
care and caution. If such an extra-judicial
confession is surrounded by suspicious
circumstances, needless to state that its credibility
becomes doubtful and consequently it loses its
importance. The same principle has been
enunciated by this Court in Balwinder Singh v.
State of Punjab...." (emphasis supplied)
29. Further in Kavita v. State of T.N. (1998) 6 SCC 108, it
was observed that:
"4. There is no doubt that convictions can be based on
extra-judicial confession but it is well settled that in the
very nature of things, it is a weak piece of evidence. It is
to be proved just like any other fact and the value thereof
depends upon the veracity of the witness to whom it is
made. It may not be necessary that the actual words used
by the accused must be given by the witness but it is for
the court to decide on the acceptability of the evidence
having regard to the credibility of the witnesses."
(emphasis supplied)
30. As per the testimony of PW5-Rajeev, after the last rites
of his brother, when police interrogated accused Sheetal, she disclosed
everything and confessed to commission of the murder of his brother
in association with accused Inderjeet. Apart from the disclosure
statement Ex.PW10/3 of the accused Sheetal, there is no other
evidence on record to establish that any such confession was made by
the accused before the police.
31. Pertinently, DW3 Taranjeet, who is the daughter of the
deceased and accused Sheetal, in her deposition stated that her parents
had cordial relations and had never had a quarrelsome relationship.
DW3 further deposed in her cross examination that her mother had
never confessed about her illicit relationship with Inderjeet Singh and
that for this reason, she had got her father murdered. DW-3 Taranjeet
being the daughter of the deceased, was not expected to take sides and
to depose falsely to save her mother after knowing that she had an
illicit relationship with the co-accused Inderjeet Arora and after
learning that her father had been killed by Inderjeet Arora. Even if
she wanted to save her mother i.e. the accused Sheetal, she would not
have shielded the accused Inderjeet Arora by making such a
statement. Thus, her testimony deserves to be relied upon like that of
any other credible witness.
32. So far the testimony of PW5 regarding making of extra
judicial confession by the accused Sheetal is concerned, this Court is
of the considered opinion that the testimony of PW5 is a weak piece
of evidence and the same alone cannot be made basis to convict the
accused. As noticed herein above, he kept swaying from one side to
other. Being the brother of the deceased, he would have spared
anyone including his sister- in- law, had she been responsible for the
murder of his brother due to an illicit relationship. As observed by
Supreme Court, the extra judicial confession must be corroborated by
a strong piece of evidence, but in the present case, apart from the
disclosure statement Ex.PW10/3-which otherwise cannot be read
against an accused, there is no other corroborative evidence against
the accused Sheetal.
33. PW8-brother of [email protected] Kaur, turned hostile
and did not support the case of the prosecution. In his cross
examination by the Ld. APP he stated that he had gone to Nirankari
Park and had taken his sister Sheetal along with him and Inderjeet
Arora was already present there. He denied the suggestion that he was
sent away by Inderjeet Arora on the pretext of getting a bottle of
water, and when PW8 returned with a bottle of water, he saw Inderjeet
Arora and his sister whispering to each other and upon seeing PW8
come, they stopped whispering and ended their conversation. In his
cross examination, PW8 stated that he did, in fact, escort his sister
Sheetal to the Nirankari Park on 27.02.2014, and Inderjeet Arora was
present there. Inderjeet Arora did talk to his sister but in a very formal
manner and in his presence at all times.
34. Since there is no evidence or material on record to
connect accused Sheetal with hatching of a criminal conspiracy to
murder the deceased, we are of the view that the appellant Sheetal
deserves acquittal for the offence under Section 120 B and 302 IPC.
35. So far as the accused Inderjeet Singh is concerned, he too
cannot be convicted for the offence under Section 120B IPC, as the
only co-accused Sheetal has already been acquitted for the said
offence, and a single person cannot be said to commit a criminal
conspiracy. So, he also deserves to be acquitted under Section 120B
IPC.
36. Now the only allegation remaining against the accused
Inderjeet Singh is for the offence under Section 302 IPC.
37. The accused Inderjeet Singh Arora got recovered several
articles connected with the crime, which include his clothes- which
were stained with the blood of the deceased; the original number plate
of his car Ritz; his car with a false number plate; RC of the car; blood
stained seat covers - the DNA found on it matched with the DNA of
the sample drawn from the deceased and; the weapon of the offence
i.e. Iron Rod. Pertinently, even the DNA of the blood found on the
iron rod matched with that of the deceased. The seizure memos of his
mobile phone is Ex.PW9/F, RC with car key is Ex.PW9/H, the
original number plate is Ex.PW9/J, clothes of the accused is
Ex.PW9/K, the seat covers is Ex.PW9/L and iron rod used in the
commission of the offence is Ex.PW9/M. The recoveries were made
in the presence of SI Kamlesh Kumar and HC Parveen. The FSL
report Ex.PW23/1 shows that the blood stained stone, iron rod, pant
and shirt of the accused Inderejeet, blood stained seat cover, blood
stained iron rod and hair of the deceased were examined apart from
other exhibits. As per the detailed report, DNA profile generated
from the blood of the deceased matched with that found on the stone,
iron rod, pant and shirt of the accused Inderejeet, seat covers, of his
car, iron rod and hair of the deceased.
38. Learned counsel for Inderjeet contended that SI Kamlesh
was not examined, and no explanation has come on record for his
non-examination. Thus, the alleged recoveries are doubtful and
cannot be relied upon by the Court.
39. Though, it is correct that SI Kamlesh has not been
examined by the prosecution as a witness to corroborate the recovery
of articles from, or at the instance of the accused Injderjeet, but we are
of the view that each and every witness need not to be examined on
every single aspect, when other witnesses have been examined to
prove the same. In the present case, the recovery of above mentioned
articles at the instance of the accused Inderjeet has duly been proved
by PW9 Praveen and non-examination of the other recovery witness,
in our opinion, is not fatal to the case of the prosecution and no
prejudice has been caused to the accused due to non-examination of
SI Kamlesh. No adverse inference can be drawn against the
prosecution due to the said failure. In Baldev Singh v. State of
Haryana (2015) 17 SCC 554, the Supreme Court observed:
"The contention at the hands of the learned Senior
counsel for the appellant is that non-examination
of Chander Singh, SI who prepared rukka and who
investigated the case raises serious doubt about
the prosecution case. The material on record
would show that Chander Singh, SI who
investigated the case was not examined by the
prosecution inspite of several opportunities. No
doubt, it is always desirable that prosecuiton has
to examine the investigating officer/police officer
who prepared the rukka. Mere non-examination of
investigating officer does not in every case cause
prejudice to the accused of affects the credibility of
the prosecution case. Whether or not any
prejudice has been caused to thee accused is a
question of fact to be determined in each case.
Since Ram Singh, PW 1 was a part of the police
party and PW 1 has signed in all recovery memos,
non-examination of Chander Singh, SI could not
have caused any prejudice to the accused in this
case nor does it affect the credibility of the
prosecution version."
40. Pertinently, even though the investigating officer was not
examined, the Supreme Court did not find the same to be fatal to the
case of the prosecution, since other police witness- part of the police
party, was examined by the prosecution. The present is a case on a
much stronger footing, since SI Kamlesh was not the Investigating
Officer and was only one of the members of the police party, who
happened to witness the recovery proceedings. Though he was not
examined, the other recovery witness PW9 Praveen has testified and
established the recoveries from the accused Inderjeet Arora.
41. It is further contended on behalf of the accused that no
independent witness was joined in the investigation at the time of
recovery of articles at the instance of the accused. Learned APP for
the State has countered this submission. He submitted that non-
involvement/joining of independent witness is not fatal to the case of
the prosecution. Reliance has been placed on State Govt of NCT of
Delhi vs Sunil and Another, [2000 (7) SCALE 692]. It is apparent
from the record that no independent witness was joined during the
recovery of articles at the instance of the accused Inderjeet, but the
fact cannot be ignored that the general public usually remains
reluctant to join the police investigation for many reasons. The people
consider it as undue harassment; wastage of time; harassing, as it
involves being called to the police station and Courts repeatedly; and;
the fear of earning the wrath of someone who may be involved in a
serious crime. Thus, in our view, non-joining of public witnesses in
the investigation does not affect the case of prosecution and the case
of prosecution cannot be discarded on that ground alone.
42. Learned counsel for the appellant Inderjeet Arora has
submitted that the recovery of the iron rod is from an open public
place, and for that reason, the same cannot be relied upon. We do not
find any force in this submission of learned counsel for the reason that
the body of the deceased itself was lying near the water tank close to
Thokar No.13 in Village Jhangola. Thus, it was in a far flung
surrounding that the body of the deceased was found. The seizure
memo in respect of the iron rod Ex. PW-9/M shows that the accused
Inderjeet Arora led the police party to the place where the iron rod
was thrown by him- which was about 10-12 steps towards the east
inside a wheat field. Thus, the iron rod was not recovered from an
open barren land, such that it would be visible to any person who may
visit the place. The iron rod was recovered from the wheat field
which shows that the same was lying hidden in the standing crops. In
this regard, we may refer to the judgment of the Supreme Court in
State of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC 370, wherein
it was held:
"26. There is nothing in Section 27 of the Evidence
Act which renders the statement of the accused
inadmissible if recovery of the articles was made
from any place which is "open or accessible to
others". It is a fallacious notion that when
recovery of any incriminating article was made
from a place which is open or accessible to others,
it would vitiate the evidence under Section 27 of
the Evidence Act. Any object can be concealed in
places which are open or accessible to others. For
example, if the article is buried in the main
roadside or if it is concealed beneath dry leaves
lying on public places or kept hidden in a public
office, the article would remain out of the
visibility of others in normal circumstances. Until
such article is disinterred, its hidden state would
remain unhampered. The person who hid it alone
knows where it is until he discloses that fact to
any other person. Hence, the crucial question is
not whether the place was accessible to others or
not but whether it was ordinarily visible to others.
If it is not, then it is immaterial that the
concealed place is accessible to others.
27. It is now well settled that the discovery of fact
referred to in Section 27 of the Evidence Act is not
the object recovered but the fact embraces the
place from which the object is recovered and the
knowledge of the accused as to it (Pulukuri
Kottaya [Pulukuri Kottaya v. Emperor, AIR 1947
PC 67 : 74 IA 65] ). The said ratio has received
unreserved approval of this Court in successive
decisions. (Jaffar Hussain Dastagir v. State of
Maharashtra [(1969) 2 SCC 872] , K.
Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC
1788] , Earabhadrappa v. State of
Karnataka[(1983) 2 SCC 330 : 1983 SCC (Cri)
447] , Shamshul Kanwar v. State of U.P.[(1995) 4
SCC 430 : 1995 SCC (Cri) 753] , State of
Rajasthan v. Bhup Singh[(1997) 10 SCC 675 :
1997 SCC (Cri) 1032] .)" (emphasis supplied)
43. The fact that the accused led the police party to an
inconspicuous place and got recovered the weapon of offence i.e. iron
rod - which was seized vide memo Ex.PW9/M, clearly establishes the
knowledge of the accused Inderjeet Arora with regard to the place
where the said iron rod was located, and his knowledge that the said
iron rod was the weapon of offence. The fact that the said iron rod
was the weapon of offence stands established by the doctors opinion
Ex.PW15/2 and the FSL Report Ex.PW23/1 to 23/3. The said
recovery is clearly admissible under Section 27 of the Evidence Act.
Thus, the circumstance of the knowledge of the accused that the
recovered rod was used to strike the deceased, and his knowledge
about where the said iron rod was left/ thrown after the commission of
the offence stand duly proved. He has, however, not offered any
explanation for his knowledge of these facts.
44. Learned counsel contends that the accused was at home
on the day of incident and to prove his defence, he examined DW1
Sh. Govind Lal Arora who, in his testimony stated, that Inderjeet
Singh Arora is his nephew and he had visited Inderjeet's house on
27.02.2014 and had eaten dinner with Inderjeet and his brother and
the wife of Inderjeet's brother on 27.02.2014. On 27.02.2014, when
DW1 proceeded to leave for his house, drizzling had started to which
Inderjeet and his brother compelled DW1 to stay till the weather gets
better and then leave thereafter. Consequently, DW1 had stayed at
their house for the night and had left for his house next morning on
28.02.2014 at about 8-8:30AM. Similarly, DW2 Tarun Arora in his
statement had stated that he had requested his uncle DW-1 to stay the
night as it was raining on the night of 27.02.2014, and DW1 had
acceded to this suggestion. DW2 further stated that Inderjeet was
present in the house in the morning of 28.02.2014 and had not gone
anywhere and was at his residence on 28.02.2014.
45. Both DW-1 and DW-2 are the relatives of the accused
Inderjeet Arora- DW-1 Govindlal Arora is the uncle of the accused,
and DW-2 Tarun Arora is the younger brother of the accused. They
are both interested witnesses and, therefore, their testimony would
have to be taken with a pinch of salt and would need corroboration for
the same to be accepted.
46. Apart from the statement of these witnesses, there is no
definite evidence brought on record to establish that DW-1 was,
indeed, with the accused and his brother DW-2 and his wife on the
27th of February, 2014. Pertinently, DW-2 in his cross examination
states that DW-1 had not attended his marriage, and he had not visited
his house at the time of the death of his mother. These answers of
DW-2 suggest that DW-1 was not particularly close to the family of
the accused and his brother, thereby raising a doubt as to whether he
would stay back after dinner, and not return to his home on account of
some rain.
47. Let us now examine the testimony of DW-1 and DW-2.
As per the testimony of DW-1, he finished his dinner at the house of
the accused at about 9-9:30 p.m. When he came out to leave for his
house, he saw that a drizzle had started. He was asked by the accused
and his brother to stay back as the weather did not improve. He
stayed back in the night and slept in the room of Inderjeet Arora. He
states that he left the next morning at 8-8:30 a.m. He states that from
5:30 p.m. on 27.02.2014 till 8:30 p.m. (sic a.m.) on 28.02.2014,
neither he had gone from the house nor the accused Inderjeet Arora
had left the said house.
48. From the testimony of DW-1, it emerges that after having
his dinner, he retired for the day. Pertinently, he is a 64 year old
person. Thus, if the accused left the room after he had gone to sleep,
and the accused came back before he woke up the next morning, DW-
1 would not even come to know of it. As per the postmortem report
Ex. PW-15/1, which was prepared on 01.03.2014 at 11:20 a.m., the
time since then death was around 36 hours. Thus, the approximate
time of death of the deceased was around 11:20 p.m. on 27.02.2017,
which is much after DW-1 had decided to stay back after his dinner
around 9-9:30 p.m.
49. The accused Inderjeet Arora and the deceased were
neighbours, residing in the same locality. Thus, it is quite possible
that DW-1 may not even have realized when the accused may have
slipped away after he had gone to sleep, and returned to the room later
in the night and slept without the same being noticed by DW-1.
50. The testimony of DW-1 needs corroboration for it to be
accepted, and there is no corroboration in the form of undeniable,
undisputed or independent evidence of the version narrated by him
with regard to the whereabouts of the accused Inderjeet Arora on the
fateful night.
51. Similarly, the testimony of DW-2, the younger brother of
the accused Inderjeet Arora is of no avail to the accused. He has
deposed on the lines of DW-1. However, he was in a separate room
with his wife on the fateful night, and the possibility of his learning
that the accused had left the house later in the night is even more
remote. Pertinently, in his examination in chief, he, inter alia states
"It might be possible for a shorter period of duration he might have
gone to gali outside the house, but mostly he remained present at the
house".
52. The aforesaid statement made by DW-2 in his
examination in chief assumes significance. Pertinently, it is not in his
cross examination that he has made the said statement. Thus, it
appears that DW-2 did perceive that the accused had left the home for
some time on the night of 27.02.2014. The accused did not declare
DW-2 hostile on this aspect, and did not seek to cross examine him as
to on what basis he had claimed that the accused might have left the
home for a shorter period and gone in the gali, and what he meant
when he stated that the accused "mostly" remained present in the
house. Thus, the plea of alibi set up by the accused has not been
proved satisfactorily, and the said defence is rejected.
53. The appellant Inderjeet Arora has also contended that
PW-13 Sohan Lal had turned hostile and had not supported the case of
the prosecution. PW-13 was the person running the Jagadamba
Service Station between Nathpura to Burari, where the accused had
sent his car for washing. We do not find any merit in the submission
of the appellant premised on the hostility of PW-13.
54. The testimony of a hostile witness need not be
completely disregarded. The testimony of such a witness, insofar as it
is corroborated by other evidence brought on record, may be relied
upon. In this regard, we may refer to the judgment of the Supreme
Court in Bhajju v. State of Madhya Pradesh, (2012) 4 SCC 327,
wherein it was held:
"35. Now, we shall discuss the effect of hostile
witnesses as well as the worth of the defence put forward
on behalf of the appellant-accused. Normally, when a
witness deposes contrary to the stand of the prosecution
and his own statement recorded under Section 161
CrPC, the prosecutor, with the permission of the court,
can pray to the court for declaring that witness hostile
and for granting leave to cross-examine the said witness.
If such a permission is granted by the court then the
witness is subjected to cross-examination by the
prosecutor as well as an opportunity is provided to the
defence to cross-examine such witnesses, if he so desires.
In other words, there is a limited examination-in-chief,
cross-examination by the prosecutor and cross-
examination by the counsel for the accused. It is
admissible to use the examination-in-chief as well as the
cross-examination of the said witness insofar as it
supports the case of the prosecution.
36. It is settled law that the evidence of hostile
witnesses can also be relied upon by the prosecution to
the extent to which it supports the prosecution version
of the incident. The evidence of such witnesses cannot be
treated as washed off the records, it remains admissible
in trial and there is no legal bar to base the conviction
of the accused upon such testimony, if corroborated by
other reliable evidence. Section 154 of the Evidence Act
enables the court, in its discretion, to permit the person,
who calls a witness, to put any question to him which
might be put in cross-examination by the adverse party.
37. The view that the evidence of the witness who has
been called and cross-examined by the party with the
leave of the court, cannot be believed or disbelieved in
part and has to be excluded altogether, is not the correct
exposition of law. The courts may rely upon so much of
the testimony which supports the case of the
prosecution and is corroborated by other evidence. It is
also now a settled canon of criminal jurisprudence that
the part which has been allowed to be cross-examined
can also be relied upon by the prosecution. These
principles have been encompassed in the judgments of
this Court in the following cases:
(a) Koli Lakhmanbhai Chanabhai v. State of
Gujarat [(1999) 8 SCC 624 : 2000 SCC (Cri) 13] ,
(b) Prithi v. State of Haryana [(2010) 8 SCC 536 :
(2010) 3 SCC (Cri) 960] ,
(c) Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC
1 : (2010) 2 SCC (Cri) 1385] and
(d) Ramkrushna v. State of Maharashtra [(2007) 13 SCC
525 : (2009) 2 SCC (Cri) 427]" . (emphasis supplied)
55. PW-13 has deposed that in the month of February last
year (the statement of PW-13 was recorded on 05.03.2015 and,
therefore, the last year would be 2014) on the day following the night
when it had rained, a person "who perhaps was the accused present in
the Court (witness has pointed out towards the accused Inderjeet and
stated "shakal main farak ah gaya hai")" brought his car for washing.
He further stated that the car was having the smell of liquor and the
person who had brought the car asked him to remove the seat covers.
The person took away the car and after some days the police had
brought the said person to him and he had informed the police that the
said person had got his car washed from him. PW-13 was declared
hostile in that stage, and on his cross examination by the APP, he
admitted that the car was Ritz. He also admitted that the front seat
cover was quite wet. Though he denied the suggestion that there were
red spots on the seat cover, and that he did not know of his statement
recorded by the police, he admitted that the seat cover was seized by
the police vide seizure memo Ex. PW-9/2. He could not identify the
accused with definiteness as the person who had brought the car, and
volunteered by stating "changes ho gai hai". Pertinently when PW-13
was cross examined by the accused, he, firstly, stated that "I had only
taken of the seat covers on asking of the accused but had not taken
them for the purpose of washing". He also denied the suggestion
"that accused Inderjeet had never brought his car to me and had
never had the seat covers removed". He denied the suggestion that he
was deposing falsely under the pressure of police.
56. From the testimony of PW-13, it is evident that when he
initially deposed on 05.03.2015, he endeavoured to save the accused.
Though he claimed that he did not know what had been recorded in
his statement Ex. PW-13/A by the police, he admits his signatures on
the seizure memo Ex. PW-9/2. Pertinently, he did not claim that he
had been made to sign blank documents, or made to sign documents
without reading them. Thus, his failure to recognize the accused
Inderjeet and denial of red spots on the car seats cannot be accepted.
The repeated remarks made by PW-13 that "shakal mein farak ah
gaya hai" and "changes ho gai hai" themselves show that PW-13 was
conscious of and appreciated the fact that the original face seen by
him - of the person who had brought the Ritz car to him for washing
in February 2014, had undergone changes. When a person says that
the face of another person has undergone changes, what he is doing is
to make a comparison between the two faces i.e. one that he saw
earlier, and the one he is seeking while making his statement.
Pertinently, PW-13 did not say that the accused produced before him
in Court is definitely not the person who had brought the Ritz car for
washing in February 2014. He was able to discern the fact that the
same face, which he had seen a year ago, had undergone changes.
Coupled with it is the fact that when PW-13 was cross examined by
the accused on 10.02.2017, he denied the suggestion that the accused
Inderjeet had never brought his car to him, or had never got the seat
covers removed.
57. So far as the non production of the CDR of the deceased
is concerned, it is not the case of the prosecution that the deceased
was carrying his mobile phone when the accused Inderjeet Arora took
him along with him. In fact, the case of the prosecution is that the
mobile phone of the deceased remained with the accused Sheetal at
home. Thus, there was no useful purpose to be served for the
prosecution by leading in evidence the said CDR.
58. The aforesaid discussion shows that the prosecution has
been able to conclusively establish the complete chain of
circumstances, which lead only to one conclusion i.e. of the accused
Inderjeet Arora having murdered the deceased. The recovery of the
Ritz car of the accused with a false number plate is indicative of his
intention to cover his steps and hide the identity of the vehicle and,
consequently, his own identity at the time of commission of the
offence, and soon thereafter. The recovery of the original number
plate on the disclosure of the accused Inderjeet establishes his
knowledge about the same. Pertinently, he has not explained as to
why the number plate of his car was changed, and a false number
plate was put on the car - as found when it was seized. The act of the
accused Inderjeet Arora in taking his car for washing at the service
station of PW-13 in February 2014, on the day following the rain in
the night in the month of February' 2014, which coincides with the
fateful night (as per the statement of DW-1 and DW-2), and the
statement of PW-13 that he had removed the seat covers form the said
car which were then seized by the police vide Ex. PW-9/L, and were
found to contain the blood, the DNA whereof matched with that of the
deceased, establishes that the accused had taken the deceased in his
car in a bleeding condition. The discovery of the body of the
deceased at a remote location i.e. near a water tank at Thokar No.13 in
a field near Jhangola Village and the seizure of the iron rod at the
behest of the accused Inderjeet Arora shows that the accused was not
only aware of the location of the iron rod, but also the fact that the
same had been used to strike the deceased with it. The opinion of the
doctor that the said iron rod could be the one used to cause the injury
suffered by the deceased, conclusively establishes that the accused
had used the said rod - apart from the stone, to attack the deceased.
Pertinently, the accused failed to give any explanation as to how he
was aware of the location of the iron rod in the field and about the fact
that the iron rod had been used to attack the deceased leading to the
definite conclusion that it is the accused who had used the iron rod to
attack the deceased. He failed to explain how the blood of the
deceased came on his car seat covers.
59. The postmortem report Ex. PW-15/1 states that the death
was due to cranio-cerebral damage consequent upon multiple injuries
to the head. Injury nos. 2, 3 and 4 could be caused by hard blunt
object like rod or weapon, whereas injury no.1 could be caused by
blunt object like a stone. The report also states that injuries were
sufficient to cause death in ordinary course of nature. On the iron rod,
another medical opinion was given by the doctor which is Ex. PW-
15/2 to state that injury no.1 could be possible due to the examined
stone, and injury nos.2, 3 and 4 could be caused by the iron rod in
question.
60. Thus, in our view, the prosecution has been able to
complete the chain of circumstances, and the only conclusion which
emerges clearly points to the guilt of the appellant Inderjeet Arora in
the commission of the murder of the deceased.
61. However, the prosecution has failed to make out any case
against the appellants for the commission of offence under Section
120-B IPC. So, both the appellants are acquitted for the offence under
Section 120B IPC. Appellant Sheetal is also acquitted for the offence
under Section 302 IPC.
62. Consequently, as discussed above, the impugned
judgment of conviction and order on sentence passed against the
appellant-Sheetal is set aside. She is acquitted of the charges leveled
against her. She be set at liberty forthwith, if not required in any other
case.
63. The judgment of conviction passed against the appellant
Inderjeet Singh Arora for the offence under Section 302 IPC is hereby
upheld and his conviction is sustained.
64. Consequently, both the appeals stand disposed of in the
aforesaid terms.
(VIPIN SANGHI) (P.S. TEJI)
JUDGE JUDGE
JULY 27, 2018
