Sushil Sharma Vs. State of N.C.T. of Delhi
[Criminal Appeal No.693 of 2007]
(SMT.) RANJANA PRAKASH DESAI, J.
1. In this appeal, by special leave, appellant - Sushil Sharma ("the appellant") has challenged judgment and order dated 19/02/2007 passed by the Delhi High Court in Criminal Appeal No.827 of 2003 confirming the death sentence awarded to him in Sessions Case No.88 of 1996. He was tried in the said case along with A2-Keshav Kumar ("A2-Keshav"), A3-Jai Prakash, A4- Rishi Raj and A5-Ram Prakash.
2. The appellant was tried for offences punishable under Section 302, Section 120-B read with Sections 302 and 201 of the Indian Penal Code ("the IPC"). A2-Keshav was tried under Section 120-B read with Sections 302 and 201 of the IPC . A3-Jai Prakash, A4-Rishi Raj and A5-Ram Prakash were tried under Section 212 of the IPC . Learned Additional Sessions Judge by judgment and order dated 3/11/2003 convicted the appellant under Section 302 of the IPC . He convicted the appellant and A2-Keshav under Section 120-B read with Section 201 of the IPC . Since the charge under Section 302 read with Section 120-B of the IPC was held not proved against A2-Keshav, he was acquitted of the said charge.
Charge under Section 212 of the IPC was held not proved against A3-Jai Prakash, A4-Rishi Raj and A5-Ram Prakash and they were acquitted. Learned Additional Sessions Judge forwarded the death reference to the Delhi High Court, as required under Section 366 of the Code of Criminal Procedure , 1973 ('the Cr.P.C.'). A2-Keshav did not file any appeal. As stated above, by the impugned judgment, the Delhi High Court confirmed the death sentence awarded to the appellant.
PROSECUTION CASE:
3. The appellant was the President of Delhi Youth Congress (I), at the relevant time. Naina Sahni ('the deceased') was the General Secretary of the Delhi Youth Congress (I) Girls Wing. The appellant and the deceased were working for Delhi Youth Congress. The office of the Delhi Youth Congress was earlier situated at 4, Bhai Veer Singh Marg, Gole Market, New Delhi. Later on, it was shifted to 2, Talkatora Road, New Delhi. The deceased used to visit the appellant at the office of Youth Congress at the above-mentioned places. In the year 1992, the appellant obtained Flat No.8/2A situated at Mandir Marg, New Delhi ("Flat No.8/2A" or "the said flat") from it's allottee - Jagdish Prasad. The deceased used to visit the appellant at the said flat also. At times, she used to stay there in the night. The appellant and the deceased got married secretly. The deceased, therefore, continued to live in the said flat as the wife of the appellant till she was murdered.
4. The India Tourism Development Corporation ('the ITDC') which was running its unit called Ashok Yatri Niwas at Ashoka Road entered into a licence agreement on 10/11/1994 with Lalit Kishore Sachdeva, Virendra Kumar Nagpal, Manoj Malik, R.P. Sachdeva and the appellant - partners of M/s. Excel Hotel & Restaurant Inc., situated at 159, Kamla Market, Delhi. The licence granted by the ITDC permitted the user of park in front of main gate of Ashok Yatri Niwas towards Ashoka Road by the said partners of M/s. Excel Hotel & Restaurant Inc. for running a 'Bar-be-Que'. As per the licence, Bar-be-Que was continuously run by the appellant at the said park. It was called 'Bagia Bar-be-Que'. There was a tandoor in the said park. The park had fencing of bamboos called Jafri.
5. On the night of 2-3/07/1995, PW-3 HC Kunju, who was posted at the P.S. Connaught Place and PW-4 Home Guard Chander Pal of Delhi Home Guard were patrolling in the Ashoka Road, Western Court Area. At about 11.00 p.m., when they reached near Ashok Yatri Niwas they heard the cry of PW-7 Anaroo Devi saying 'hotel main aag lag gayi' (hotel is on fire). Having heard the cry, PW-3 HC Kunju and PW-4 Home Guard Chander Pal rushed towards Janpath lane where Ashok Yatri Niwas is situated. They noticed smoke spiralling and flames leaping out of Bagia Bar-be-Que from the side of the kitchen. PW-3 HC Kunju rushed to the nearby telephone booth to inform the control room. However, the telephone booth was closed. He, then, left PW- 4 Home Guard Chander Pal at the site and rushed to the police post Western Court situated nearby to inform the police station, on wireless, about the fire. On return, PW-3 HC Kunju noticed that the smoke and fire had increased. PW-3 HC Kunju and PW-4 Home Guard Chander Pal, in order to find out the cause of the same, entered the Bar-be-Que from its back. They found A2-Keshav standing near the tandoor. They also noticed him putting wooden logs and small fire wood in the fire so as to increase it with the aid of a bamboo. PW-3 HC Kunju told A2-Keshav that by this, the fire would spread and the entire hotel would be burnt. A2-Keshav then represented to PW-3 HC Kunju that he was a worker of the Congress Party and he was burning old banners, posters and waste papers of the party.
6. Patrolling Officer SI Rajesh Kumar along with CW-5 HC Majid Khan of Police Control Room, PW-62 PC Ranbir Singh and security staff of hotel PW- 35 Mahesh Prasad reached the Bar-be-Que from the main gate of Ashok Yatri Niwas towards Ashoka Road. The appellant was noticed by them standing by the side of the kanat at the gate of the Bar-be-Que. Foul and pungent smell was emitting from the tandoor. A2-Keshav was detained out of suspicion by SI Rajesh Kumar and PW-3 HC Kunju. SI Rajesh Kumar along with security staff of the hotel and A2-Keshav then went upstairs to find out whether the fire had spread there. They noticed that the flames in the tandoor had flared-up again. SI Rajesh Kumar and others rushed downstairs. By that time the appellant had run away from there.
7. The fire was doused. When they went near the tandoor they saw a part of human body inside it. Closer look revealed that it was a charred body of a female whose limbs had burnt. Intestines had come out of the body. Burnt bones were lying in the tandoor. They also noticed near the tandoor a black polythene sheet. Investigating Officer PW-81 IO Niranjan Singh and senior officer of the hotel PW-5 K.K. Tuli also reached there. Then, A2- Keshav was handed over to PW-81 IO Niranjan Singh. PW-81 IO Niranjan Singh inspected the site. He found that the burnt body was of a woman. He recorded the statement of PW-3 HC Kunju which was treated as FIR.
8. There were blood stains on the clothes of A2-Keshav. He was arrested. His blood stained clothes were seized. PW-81 IO Niranjan Singh seized the polythene sheet, besides other articles, from the place of offence. After holding the inquest proceedings, PW-81 IO Niranjan Singh sent the dead body to RML Hospital, where PW-85 Dr. Joginder Singh prepared the Medico Legal Report (Ex.PW-85/A). PW-85 Dr. Joginder Singh noticed the following condition of the charred body. "Whole body burnt exposing underlying bones and tissues, gastro intestinal contents are protruding outside. The left lower limb is amputated above the knee joint, right limb is amputated below knee joint. Brought dead."
9. The prosecution had made an application to the hospital authorities to preserve the dead body as it was not identified. In view of the disclosure made by A2-Keshav, the search for the appellant and the Maruti Car in which he had come to the restaurant was started. Since both could not be traced out, the police obtained arrest warrant for the appellant.
10. On 04/07/1995 the police got information from Chanakya Puri Police Station that Maruti Car No.DL-2CA-1872 had been found abandoned at Malcha Marg near Gujarat Bhawan where the appellant had gone and spent the night of 2-3/07/1985 with PW-31 D.K. Rao after fleeing from his Bagia Restaurant. The police team reached the said place and found the Maruti Car abandoned there. On inspection of the car, they found dried blood in the dicky and some hair stuck on the back of the left front seat. On 4/7/1995 the police also searched Flat No.8/2A where the appellant was residing. Certain articles were seized. During the search, some cartridges, a lead bullet and a ply having a hole and an air pistol were seen in the said flat but they were not seized as Ballistic Expert was not present. They were seized in the presence of Ballistic Expert on 5/7/1995 under a panchnama. On enquiries made from the neighbourhood, the police came to know that the deceased used to live in the said flat of the appellant as his wife. One Maruti Car No.DAC 3283 was parked below the flat, which was found to be in the name of the deceased. It was seized by the police.
11. Parents of the deceased were contacted for identification of the corpse. On seeing the charred body kept in the mortuary, they simply wept but they could not identify the dead body. On 05/07/1995 the dead body was identified by PW-12 Matloob Karim, who was also a worker of the Congress Party and was stated to be very close to the deceased. Thereafter, on 05/07/1995, the post-mortem examination was conducted by CW-6 Dr. Murari Prasad Sarangi. The condition of the burnt body as noticed by CW-6 Dr. Sarangi, in his Report, was as under: "(Eyes, Ears, Nose, Mouth, Teeth and Tongue etc.) Both eye lids with face charred, eye balls destroyed, ears, nose and lips were also charred, teeth were exposed and studded with soot, other natural orifices were studded with soot particles.
EXTERNAL EXAMINATION:-
Revealed extensive charring of a female dead body beyond identification, having attained a Pugilistic attitude owing to coagulation of the muscle proteins. Skull bone exposed, partly burnt, blackened, showed multiple post mortem cracks with a few strands of partially burnt hair and metallic hair clip. ...intestines exposed to outside with portions of other internal organs in the abdomen, more on the left side. Thoracic cage, intercostals muscles and diaphragm were burnt more on the lt side. Lt. thigh was chopped off, 28 cms. below left. And super iliac spine, underlying thigh bone cut from the back showing beveling from above downwards vide overleaf. No evidence of firearm discharge from internal examination of the organs. HEAD and NECK Scalp tissue almost burnt except over a very insignificant (2.5 x 0.8 cm) area on the occipital region with a few strands of burnt hair. Skull showed multiple post mortem heat cracks partly charred and blackened.
BRAIN, MENINGES and CEREBRAL BLOOD VESSELS:
Reddish white thick heat haematoma present more on the left cerebral hemisphere above the dura adhered to the endoevanium on the same side. Meninges intact and pale. Brain shrunken and substance looked pale, no injury or haemorrhage anywhere.
LARYNX, PHARYNX and OTHER NECK STRUCTURES
Pharynx, Larynx and Tracheal rings intact lipoid bone intact. Mucous membranes of Pharynx, Larynx and Trachea showed adhered soot particles. Blood vessels were destroyed and collapsed due to burns.
THORAX
Burnt as mentioned above. Leg was chopped off 23 cm. below the knee. Both the bones of the leg exposed being cut from the front showing beveling below and inwards. Patella (knee cap) bone was missing on the Rt.side Distal phalanges in the hand missing (chopped off) Upper limb was chopped off just below the elbow. Trachea and Bronchi: Intact, mucosa of Tracheal rings smeared with black soot particles. Pleural Cavity and Lungs: Pleural studded with carbon particles did not show any inflammatory sign to the naked eyes. Both lungs shrunken, desiccated and pale WT 200 gms. (Lt) 210 gms (Rt.) Abdominal wall, peritoneum: Abdominal and pelvic walls burnt, peritoneum- partly burnt. Stomach and contents: Contained about 500 ml of brownish-semi liquid material, smelt alcoholic, walls looked pale Pancreas, small and large intestines: Shrunken, desiccated, protruded out, no injury/abnormality was noticed."
12. CW-6 Dr. Sarangi opined provisionally that the cause of death was "hemorrhagic shock consequent to various ante-mortem injuries found on the dead body". According to CW-6 Dr. Sarangi the burns noticed on the dead body appeared to have been inflicted after death. Final opinion about the cause of death was kept pending by him till the receipt of the Report about histopathological examination as well as the Report of examination of viscera and blood sample. Although PW-81 IO Niranjan Singh had also asked for X-ray of the dead body to find out if there was any firearm injury, it could not be conducted at that time because the X-ray machine was stated to be out of order.
13. The appellant, in order to avoid his arrest, spent the night of 2/7/1995 at Gujarat Bhawan, New Delhi with PW-31 D.K. Rao and from there he kept on going from one city to another. He called up PW-31 D.K. Rao on 4/7/1995 from Bombay and told him that he had killed his wife i.e. the deceased. It may be mentioned here that the High Court has not relied upon this piece of evidence and, in our opinion, rightly so. The appellant obtained anticipatory bail from the Sessions Court at Madras upon coming to know that the police were looking for him. The anticipatory bail granted by Sessions Court, Madras was later on cancelled by the Madras High Court at the instance of the Delhi Police. He was arrested on 10/07/1995 at Bangalore by the Bangalore Police under Section 41A of the Cr.P.C. when he was moving around in a suspicious manner with his advocate Mr. Anantanarain. Delhi Police upon coming to know about his apprehension went to Bangalore and took over the custody of the appellant on 11/7/1995 with the permission of the concerned court. During the interrogation, it transpired that the appellant was staying in one hotel called Pai Vihar along with advocate Mr. Anantanarain. The appellant led the police to Room No.110 of the said hotel. From the room he produced a briefcase which was found to contain one .32 bore revolver No.1277725 (make Arminius) with its license in his name, four live cartridges and some other documents. All these articles were seized by PW-81 IO Niranjan Singh.
14. The appellant was then brought to Delhi. Pursuant to disclosure statements made by him one blood stained kurta-pajama was recovered from the bushes near Gujarat Bhawan at Malcha Marg. At his instance, another blood stained kurta was also recovered from Rangpuri area.
15. The investigating agency decided to get another post-mortem examination conducted from a Board of Autopsy Surgeons. Accordingly, second post-mortem examination was done on 12/07/1995 by a team of three doctors headed by PW-44 Dr. Bharat Singh. During the course of the second post- mortem examination the dead body was subjected to X-ray examination and the X-ray Reports showed the presence of one metallic piece in the skull and one in the neck region of the dead body. Those metallic pieces were then extracted out and were found to be lead bullets. The Board of Doctors opined that the cause of death was due to "coma consequent upon firearm injury on the head which was sufficient to cause death in the ordinary course of nature".
16. The bullets recovered from the body, fired cartridge cases, one lead bullet which were recovered from the said flat, the live cartridges and Arminius revolver recovered from the possession of the appellant at Bangalore were sent to the Central Forensic Science Laboratory ("the CFSL") for examination by a Ballistic Expert. The Ballistic Expert - PW-70 Roop Singh gave Report (Ex. PW-70/A) confirming that the .32 Arminius revolver was a firearm in working condition and had been fired through. He further opined that the five .32 cartridge cases and one lead bullet, which were recovered from the said flat and the two lead bullets which were extracted from the skull and neck of the deceased had been fired from the said .32 Arminius revolver. The piece of plywood seized from the said flat on which a bullet hole was noticed, was also forwarded to the CFSL. The bullet hole was found to have been caused by the aforesaid .32 lead bullet recovered from the said flat. Blood stained articles seized from the Bagia Restaurant and those recovered from the said flat were sent to the CFSL where, on examination, it was found that human blood found on these articles was of 'B' group, which was the blood group of the deceased.
17. DNA test was also got conducted from the Centre for Cellular and Molecular Biology, Hyderabad for confirming the identity of the corpse by forwarding to it the blood samples of the parents of the deceased and the tissues (muscle) from the thigh, radius and ulna bones and two ribs of the deceased. The DNA Report (Ex.PW-87/A) confirmed that the dead body which was burnt at the Bagia Bar-be-Que tandoor was that of the deceased, who was the biological offspring of CW-1 Smt. Jaswant Kaur and CW-2 Harbhajan Singh.
18. After completion of investigation, the prosecution came to the conclusion that the deceased was killed by the appellant since he was suspecting that she was having some relationship with PW-12 Matloob Karim. The appellant also did not want to make his marriage with the deceased public and the deceased was insisting on that. After killing her, the appellant with the help of A2-Keshav burnt her dead body in the tandoor of Bagia Bar-be-Que. The appellant was harboured to save him from punishment from the crime by three persons, namely, A3-Jai Prakash, A4-Rishi Raj and A5-Ram Prakash. After the case was committed to the Sessions Court, learned Additional Sessions Judge framed charges as aforesaid against the accused.
THE TRIAL:
19. In support of its case, the prosecution examined 85 witnesses. Seven Court Witnesses were also examined. We shall refer to the important witnesses as we proceed further. All the accused pleaded not guilty to the charges and claimed to be tried. During the trial, A2-Keshav moved an application confessing his guilt so far as the charges against him under Section 201 read with Section 120-B of the IPC are concerned. He requested the court to dispose of his case in view of the confession. He, inter alia, stated that he had not conspired to murder the deceased. He was serving in Bagia Restaurant of the appellant and, at his command, he put the dead body of the deceased in the tandoor. At the trial, A2-Keshav admitted the correctness of the contents of his confessional application. However, he added that it was moved because the Special Public Prosecutor told him that he would be released at the final stage of the trial.
20. The appellant in his statement recorded under Section 313 of the Cr.P.C. , inter alia, stated that from the evening of 1/7/1995 to 6/7/1995 he was at Tirupati Balaji and then he went to Madras on 7/7/1995. From Madras, he gave a telephone call at his residence in Maurya Enclave in Delhi when he came to know that one ACP Alok Kumar had visited his residence on 3/7/1995 and had removed from there his vehicle, licensed revolver, license of the revolver and bullets. He, further, stated that the ACP had given his telephone number and had left a message for him to contact him on phone and when the appellant contacted the ACP, he told him to get anticipatory bail otherwise he would be arrested.
He, then, obtained anticipatory bail from the Sessions Court at Madras. On 8/7/1995, he was called for enquiry at a police station at Madras and that day in the evening some police officers from Delhi reached there and brought him to Bangalore and showed his arrest there on 10/7/1995. He admitted that Car No.DL-2CA-1872 belonged to him. He stated that it was removed from his residence at MP-27, Maurya Enclave, Delhi where it was parked by his driver. At one stage, he admitted that he was living with the deceased at Mandir Marg. However, as far as his relationship with the deceased is concerned he stated as under: "I knew Naina since 1985. She contested election of Shyama Parsad Mukherjee college. She lost. I was president of N.S.U.I. Delhi. She came in contact with me then.
Her attendance was short in the college. She was not allowed to sit in the examination. Next year I got admitted her in the correspondence course. She was career oriented woman. She learned the course of Pilot. I helped her in that. She went to London for CPL (Commercial pilot license). From 1994 to January 1995 she lived in a flat Opp. Birla Mandir as paying guest. That flat belonged to a lady working in Doordarshan. I have shown that flat to police. Police did not cite her as witness. I used to be called at various functions organized at her residence along with other lady friends associated with her business and pilot course. She started living separately from her parents after there was a dispute between her and her father. She then lived at Gole Market. In the functions which were organized at the residence at Gole Market her parents visited and I also visited. She had a servant Ramu @ Bilas. She was not allowing anyone else to stay there including her parents. I had no contact with her after January, 1995. She remained busy in her career and I remained involved in politics".
21. None of the accused persons adduced any evidence in defense.
22. After considering the evidence, learned Additional Sessions Judge convicted the appellant as aforesaid. The Reference made by the learned Sessions Judge under Section 366 of the Cr.P.C. was heard by the High Court along with the appeal filed by the appellant challenging his conviction and sentence. The High Court dismissed the appellant's appeal and confirmed the death sentence awarded to him. Hence, this appeal by special leave.
23. We have heard Mr. Jaspal Singh, learned Senior Advocate for the appellant and Mr. Amarjit Singh Chandhiok, learned Additional Solicitor General for the State of NCT of Delhi. We have carefully perused the written submissions filed by them. Since death sentence is awarded to the appellant, we have independently considered the evidence. We shall now give the gist of the submissions of the counsel.
24. WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT ON THE MERITS OF THE CASE:
a) This is a case which rests on circumstantial evidence and, therefore, motive assumes great significance. The prosecution case is that the deceased wanted to make public her marriage with the appellant and the appellant did not want to do that because that would have affected his political career. To substantiate this case, PW-12 Matloob Karim has been examined, but, his conduct makes him a totally unreliable witness. He is a married man. Despite the appellant's marriage with the deceased, he kept alive his relationship with the deceased. He continued to assist the deceased in her attempt to go to Bombay or migrate to Australia. All this indicates that he was inimically disposed towards the appellant. In any case, marriage can hardly spoil anyone's political prospects. Besides, there is ample evidence on record to establish that the marriage was already known to everybody. PW-12 Matloob Karim knew about it. Marriage was with the consent of the parents of the deceased. They used to visit the said flat where the deceased was allegedly living with the appellant as his wife. Thus, the alleged motive for the murder viz. that the deceased wanted to make the marriage between her and the appellant public is not proved. Even otherwise, the prosecution evidence shows that the appellant was deeply in love with the deceased. Despite knowing her intimate relations with PW-12 Matloob Karim, he did not turn her out of the house. He only restricted her movements as he wanted to stop her from her wayward ways. There is no evidence on record to show that there were any constant quarrels between the appellant and the deceased. The story that the appellant suspected the fidelity of the deceased and, hence, he killed her is also not borne out by the evidence. Therefore, the prosecution has failed to prove motive.
b) It is the prosecution case that empty cartridges were recovered from the matrimonial house of the deceased on 4th and 5th of July, 1995. According to PW-81 IO Niranjan Singh, on 4/7/1995, he inspected the said flat in the presence of PW-14 Inspector Suraj Prakash and PW-13 Dhara Singh. He found two bowls on the cupboard containing empty cartridges and one .32 bore empty cartridge under a stool and one lead bullet under the bed. He further stated that he did not take them into possession as the Ballistic Experts were not present. According to him, he left the said flat under surveillance of PW-14 Inspector Suraj Prakash. This story is concocted because PW-13 Dhara Singh, the panch witness has nowhere stated that empty cartridges and lead bullet were found in the house on 4/7/1995. He visited the said flat on 5/7/1995 along with PW-70 Roop Singh, the Ballistic Expert and took those cartridges and lead bullet into possession in his presence. The lead bullet was stained with the blood of the blood group of the deceased. PW-14 Inspector Suraj Prakash admitted that in his statement recorded under Section 161 of the Cr.P.C. there is no mention of those recoveries. No memo was prepared that though empty cartridges and lead bullet had been found, they had not been taken into possession on account of the advise of persons from the CFSL. The Ballistic Expert - PW-70 Roop Singh does not say anything about the recoveries allegedly effected on 5/7/1995. There is a recovery memo of 4/7/1995. It does not speak of recovery of empty cartridges or lead bullet. Thus, the version of PW-81 IO Niranjan Singh about the recovery of empty cartridges and lead bullet is falsified.
c) It is the case of the prosecution that the deceased had received two bullet injuries in the skull. This is confirmed by the Report of the Board of Doctors. Any other firearm injury is, therefore, ruled out. Therefore, the prosecution must explain the presence of a lead bullet having blood group of the deceased in the room. This suggests that there was some other person also in the house having the same blood group as that of the deceased as the appellant has a different blood group from that of the deceased. Had the prosecution taken the finger prints from the vodka bottle which was lying there, it would have provided answer to this as someone was consuming vodka in the room. The deceased was a teetotaler and so is the appellant. Besides, the alleged recovery of empty cartridges, lead bullet and bullet hole in the plywood show that at least 10 rounds were fired (5 empty cartridges in the bowls, two recovered from the floor, one causing hole in the ply and two found from the skull). Surprisingly, the next door neighbours did not notice such firing. Moreover, the police found no trail of blood in the drawing room, on the stairs or on the road. This casts a shadow of doubt on the prosecution story.
d) It is also doubtful whether the death was caused due to firearm injuries. PW-85 Dr. Joginder Pal, the Casualty Medical Officer at RML Hospital, who was on duty on 3/7/1995, stated that he did not find any firearm injuries in the neck or in the head or in the nape of the deceased. CW-6 Dr. Sarangi, who had conducted the post-mortem of the deceased on 5/7/1995 at 3.30 p.m. at Lady Hardinge Medical College stated that he had opened the skull and had not noticed any bullet mark or any bullet and that the brain matter was intact. CW-6 Dr. Sarangi is MBBS and MD in forensic medicine and toxicology, having experience in the field and, therefore, his evidence cannot be lightly brushed aside. The Board of Doctors allegedly extracted two bullets and opined that those two bullets caused the death. Report dated 13/7/1995 of the Board headed by PW-44 Dr. Bharat Singh needs to be rejected because as per PW-44 Dr. Bharat Singh, the Board first conducted post-mortem on 12/7/1995 at 12.00 noon at Lady Hardinge Medical College which lasted upto 2.00 or 3.00 p.m. and it was only after 2.00 or 3.00 p.m. that the body was shifted to the Civil Hospital. However, as per PW-57 SI Ombir Singh, on instructions of PW-81 IO Niranjan Singh, he reached the mortuary of Lady Hardinge Medical College at 9.00 a.m. on 12/7/1995, took the body from there at 9.30 a.m. and reached the Civil Hospital at 11.30 a.m., where he entrusted the body to PW-44 Dr. Bharat Singh. According to him, post-mortem started at Civil Hospital at 12.30 p.m. However, as per the Report of the Board, the post- mortem started at Lady Hardinge Medical College at 12.00 noon and, thereafter, the body was shifted to the Civil Hospital. PW- 57 SI Ombir Singh has not been declared hostile and, if his statement is accepted, the evidence of PW-44 Dr. Bharat Singh about the post-mortem becomes suspect.
e) There is no evidence on record that the body and the skull subjected to post-mortem by the Board were of the deceased. PW- 44 Dr. Bharat Singh stated that the body and the skull had been identified by PW-57 SI Ombir Singh. However, PW-57 SI Ombir Singh has nowhere stated that he had identified the body. There is no evidence produced from the mortuary of Lady Hardinge Medical College that on 12/7/1995 the body and the skull of the deceased were in its mortuary and no record has been produced to show that they were removed from there on 12/7/1995. Lady Hardinge Hospital & Medical College is one of the top-most hospitals in Delhi. It is unbelievable that it had no X-ray facility. Therefore, the reason given for removal of the dead body and skull from Lady Hardinge mortuary to Civil Hospital that because X-ray facility was not available there, it was so removed, is not acceptable.
f) The entire evidence relating to the Board of Doctors deserves to be rejected because
(a) there is no evidence that the skull sent for X-ray was that of the deceased;
(b) assuming that the skull was that of the deceased, the prosecution has not led any evidence to assure that before 12/7/1995, it had not been tampered with; (c) the members of the Board have not proved the sky grams which allegedly they had examined on 12/7/1995;
(d) although PW-44 Dr. Bharat Singh has stated that the sky grams and the Report of the Radiologist were received from the Radiologist on 12/7/1995 at 2.00 p.m. or 3.00 p.m., the Report of the Radiologist shows that X-rays were taken on 13/7/1995 and the Report was also prepared on 13/7/1995 and
(e) as the X-ray films were developed and the Report was prepared on 13/7/1995, recovery of bullets from the skull on 12/7/1995 allegedly on the basis of X-rays and the Report of CW-7 Dr. P.S. Kiran makes the entire version regarding recovery of bullets unworthy of reliance. There is no evidence on record to establish that the members of the Board were experts in conducting post-mortems. The answer given by CW-6 Dr. Sarangi to a court question, which contains six reasons for rejecting the Report of the Board have not been answered by the prosecution. CW-6 Dr. Sarangi stated that after the post-mortem was conducted on 5/7/1995 on the request of PW-81 IO Niranjan Singh, he had handed over the skull bone, after separating the same from the body, to PW-81 IO Niranjan Singh. This is supported by endorsement dated 5/7/1995 made by PW-81 IO Niranjan Singh on a letter addressed by SHO, P.S. Connaught Place to the Autopsy Surgeon, Lady Hardinge Medical College. If the skull was handed over to PW-81 IO Niranjan Singh on 5/7/1995, then there is no evidence to show where the skull was kept till 12/7/1995 when it was produced before the Board headed by PW-44 Dr. Bharat Singh for post- mortem. PW-44 Dr. Bharat Singh has stated that "a burnt dead body with skull separated" was received by him and that the skull was kept in a separate cardboard box. Therefore, there is no evidence to establish that the skull was that of the deceased and assuming it to be the skull of the deceased, there is no guarantee that between 5/7/1995 and 12/7/1995, it was not tampered with. From the evidence on record, it can be said that only one unidentified skull of a lady containing two bullets was handed over to the Board on 12/7/1995. When asked whether a bullet can be put inside the body after death at a place where it had been noticed by the Board, CW-6 Dr. Sarangi stated that such a possibility could not be absolutely ruled out especially in the presence of multiple post-mortem cracks and separation of the skull bone from the neck for the purpose of superimposition.
g) Assuming that the skull produced before the Board was that of the deceased and that two bullets were recovered from the skull, the prosecution has failed to prove that the bullets were fired from the revolver of the appellant. It is the prosecution case that two bullets were put in two separate parcels and both bore the seal of Civil Hospital and, they were handed over to PW-81 IO Niranjan Singh by PW-57 SI Ombir Singh. However, PW-81 IO Niranjan Singh has nowhere stated that he had deposited the two parcels with the seal of Civil Hospital with the Mohrar Malkhana. He has not stated that he had himself sent those two parcels with the seal of the Civil Hospital to the CFSL. PW-67 HC Raj Kumar, who was in-charge of Mohrar Malkhana has stated that no parcel was deposited with him on 12/7/1995, 13/7/1995 and 14/07/1995. It was only on 15/7/1995 that two parcels were deposited but they bore the seal of N.S. Thus, from his evidence, it cannot be concluded that the parcels with the seal of Civil Hospital were ever sent to the CFSL. If these parcels were never sent to the CFSL, it cannot be said that the two bullets which killed the deceased were fired from the revolver of the appellant. Moreover, the two bullets which were allegedly extracted by the Board from the skull have not been identified by anyone.
h) The case that a revolver, a licence and four live cartridges were recovered from Pai Vihar Hotel, Bangalore where the appellant was staying is false because on 10/7/1995 at 11.30 p.m., the appellant was brought to Delhi. On 12/7/1995, a remand application was made before the Metropolitan Magistrate's Court. In that application, it is stated that the weapon used in the crime is to be ascertained and recovered. If the weapon was already recovered, such averment would not have been made in the application. Moreover, the appellant was brought on the strength of a production warrant issued by a Delhi Court and, therefore, he was in judicial custody. Section 27 of the Evidence Act would not be, therefore, attracted. In any case, no statement under Section 27 of the Evidence Act was recorded. The alleged recoveries are, therefore, not admissible. [Bahadul v. State of Orissa.[1]] Mr. Anantnarayan, the appellant's advocate was present in the hotel room when the alleged recoveries were made. However, he has not been examined. Similarly, PW-48 Srinivas Rao, the Manager of the hotel and PW- 50 Kancha, the waiter of the hotel were given-up after having entered the witness box. Recoveries were made by PW-81 IO Niranjan Singh of P.S. Connaught Place, New Delhi in Bangalore i.e. outside his territorial jurisdiction. Therefore, provisions of sub-sections (4) and (5) of Section 165 of the Cr.P.C. ought to have been followed. The licence which was allegedly recovered from Pai Vihar Hotel, Bangalore had expired on 18/1/1994 and its validity was extended only on 15/10/1995. Therefore, at the time of alleged recovery of revolver on 11/7/1995, there was no valid licence. Yet, no action was taken by the police. To cover up this, the validity of the license was extended later on. If the licence was deposited with Mohrar Malkhana with the seal of N.S., it is not understood how the entry of extension was made on it on 15/10/1995. This suggests tampering of evidence.
i) Recovery of the appellant's car from Malcha Marg is suspect because no record of wireless message has been produced; no one from P.S., Malcha Marg was examined; no record of P.S., Malcha Marg has been produced, no information was given to the nearest Magistrate; no record showing presence of PW-72 PC Mukesh Kumar was produced. According to the prosecution, the CFSL team was called and blood sample was taken from the blood stains in the dicky of the car. However, no witness from the CFSL has been examined; no photographs have been produced and no independent witness has been examined. PW-72 PC Mukesh Kumar stated that PW- 81 IO Niranjan Singh remained at the site for six hours. PW-81 IO Niranjan Singh stated that he had received wireless message about the car on 4/7/1995 at 9/10 a.m. Even if he had reached the site at 10.00 a.m. he should have remained there till 4.00 p.m. He, however, stated in his evidence that he reached the said flat at 11.30 a.m. or 12.00 noon on 4/7/1995. The seizure memo dated 4/7/1995 states that in the dicky of the car, very little blood was detected. The memo also states that the long hairs were found at the back of the front seat next to the driver's seat. If the prosecution case is true then the dicky ought to have a pool of blood and not very little blood and the long hairs should have been found in the dicky and not on the back of the front seat next to the driver's seat.
j) To prove the presence of the appellant at the tandoor in the night of 2/7/1995, the prosecution has examined PW-1 Philips and PW-2 Mrs. Nisha. They stated that they had last seen the appellant at around 9.45 p.m. at the gate of Ashok Yatri Niwas in his Maruti car. However, PW-3 HC Kunju stated that he noticed the fire at 11.20 p.m. Therefore, the presence of the appellant at around 10.00 p.m. at the tandoor is not of much importance. To prove his presence at the tandoor at 11.30 p.m. the prosecution has also examined PW-4 Home Guard Chander Pal and CW-5 HC Majid Khan. It is apparent from the evidence of PW- 3 HC Kunju that at the relevant time, the light at the Bagia Restaurant was switched off. The appellant was not known to any of the witnesses. He was identified because PW-35 Mahesh Prasad had allegedly told the witnesses about him. However, PW-35 Mahesh Prasad has stated that he had never met the appellant. It is doubtful whether PW-3 HC Kunju, PW-4 Home Guard Chander Pal and CW-5 HC Majid Khan were actually present. They are from P.S., Connaught Place. No record of P.S., Connaught Place, has been produced to show that they were on duty at the relevant time. No record has been produced to show that PW-3 HC Kunju had sent wireless message about the incident. In fact, PW-59 ASI Sher Singh stated that the message was actually received from Constable Rattan Singh. CW-5 HC Majid Khan of the PCR was directed by the court to bring Log Book of the vehicle - Victor 20 in which he claimed to have gone to the restaurant. However, the record is stated to have been destroyed. Thus, most vital contemporaneous record was kept back intentionally. CW-5 HC Majid Khan also stated that PCR Van did not enter the hotel and remained parked outside. However, the register showing entry and exit of vehicles indicates that the PCR Van entered the hotel. PW-35 Mahesh Prasad stated that all entries were made in the register by him as directed by the police at the police station. Thus, the prosecution story is shrouded in suspicion. The prosecution has not been able to prove its case beyond reasonable doubt. The appellant, therefore, be acquitted.
25. SUBMISSIONS ON BEHALF OF THE RESPONDENT ON THE MERITS OF THE CASE.
a) Unnecessary doubt is sought to be created as regards location of skull from 5/7/1995 till 12/7/1995. During trial no questions were asked and no suggestions were put to the witnesses in this regard. Had that been done, the witnesses would have offered explanation. In any case, there is reliable and cogent evidence on record that the skull was properly preserved and it was the skull of the deceased.
b) At one stage, the stand of the appellant was that there was a possibility of implanting bullets on 12/7/1995 itself when the body was being taken to the Civil Hospital for X-ray. A contrary stand is taken in this Court that two bullets might have been put in the skull during the period 5/7/1995 to 12/7/1995. This submission of the defence deserves to be rejected. There is no reason to disbelieve independent evidence of the doctors who were part of the Board of Doctors.
c) A revolver was recovered from the custody of the appellant from Bangalore on 11/7/1995. It was brought to New Delhi along with the appellant on 12/7/1995. The Report of the CFSL shows that the bullets found in the skull were from the revolver of the appellant. There was no cross-examination on the veracity of the said Report. The defence has not stated what could be the motive for PW-81 IO Niranjan Singh or anyone else to falsely involve the appellant. There was no enmity between them and the appellant.
d) The contention that the bullets recovered were not deposited in the Malkhana must be rejected. One lead bullet was deposited in the Malkahna on 5/7/1995 by PW-81 IO Niranjan Singh. Two bullets (Ex-36 and Ex-37) removed from the skull of the deceased were duly sealed and handed over to the police by PW-44 Dr. Bharat Singh immediately after the post-mortem examination. As per the Register of the Malkhana, the two bullets recovered from the skull of the deceased were deposited in the Malkhana by PW- 81 IO Niranjan Singh on 12/7/1995. They were received in the CFSL on 17/7/1995 in sealed condition, as is evident from Ex- PW70/A1-A9. The said bullets were also examined by Dr. G.D. Gupta, Serologist, who confirmed that the blood on the bullets was B+ve.
e) Only one lead bullet, five empty cartridges, one piece of ply having one hole of bullet and one air pistol were collected on 5/7/1995 after the site was inspected by PW-70 Roop Singh, the Ballistic Expert and also the Director of the CFSL - PW-16 Dr. V.N. Sehgal. From memo (Ex-PW-16/A) which bears the signature of PW-16 Dr. V.N. Sehgal and Inspector Ramesh, it is clear that only one lead bullet (Ex-24) and five cartridges (Ex-25) were found at the said flat. It is not the case of the prosecution that bullet recovered from the said flat was stained with human blood.
f) It is true that CW-6 Dr. Sarangi, who conducted the post-mortem did not find any bullet injury but due to the condition of the dead body the bullet injuries might not have been detected by naked eyes at the time of first post-mortem. The second post- mortem Report clearly states that the firearm injuries were ante- mortem. The evidence on record thus clearly establishes that firearm injuries were found on the skull of the deceased. It is true that the Security Regulations prohibit the carriage of weapons in the passenger cabin but it was not impossible for the appellant to have flown from Jaipur-Mumbai-Chennai carrying a revolver. There is no prohibition in carrying the revolver in checked-in luggage. This plea is also raised during arguments. The witnesses were not confronted with it at the trial.
g) The appellant has not established the plea of alibi. Since the appellant pleaded alibi the burden was on him to prove it. Since he has failed to prove alibi an adverse inference is drawn against him. The appellant was noticed at or around 10.00 p.m. or 11.00 p.m. in the night intervening 2nd and 3rd at Bagia Restaurant with Car bearing No.DL-2CA-1872. This is established by leading evidence of reliable witnesses. That the deceased and the appellant were last seen together on 2/7/1995 at the said Flat No.8/2A is established by the evidence of the neighbour of the appellant. PW-11 Mrs. R.K. Chaudhary. PW-12 Matloob Karim and PW-82 R.N. Dubey, the servant of the appellant have established that the relations between the appellant and the deceased were strained. PW-81 IO Niranjan Singh who deposed about the condition of the said flat and the recoveries made from the said flat. He stated that recoveries were effected on 4/7/1995 in the presence of PW-13 Dhara Singh and PW-14 Inspector Suraj Prakash and, thereafter, the said flat was locked and left under surveillance of SHO, Mandir Marg and on 5/7/1995 the recovery of one lead bullet, five cartridges, one ply with a hole, one air pistol was made in the presence of the Ballistic Expert - PW-70 Roop Singh and PW-16 Dr. V.N. Sehgal, the Director of the CFSL. The testimony of PW-13 Dhara Singh is supported by the photos taken by PW-84 PC Balwan Singh. The contention that photos taken during investigation were not placed on record is contrary to the facts. Photographs of the burnt body are exhibited at Ex-PW-74/9-16 and their negatives are at Ex-PW-74/1-9, skull photographs are at Ex-PW-76/A15-A28 and their negatives are at Ex-PW-76/A1-A31 and photographs of the said flat, female clothes etc. were placed on record at Ex- PW-76/A1-A14.
h) The appellant absconded from Bagia Restaurant on the night intervening 2/7/1995 and 3/7/1995 and stayed at Gujarat Bhawan. He absconded from Delhi to Jaipur by taxi on 3/7/1995. On 4/7/1995 he travelled by air from Jaipur-Bombay and from Bombay- Madras and, in the end, he went to Bangalore from where he was apprehended by the Bangalore Police on 10/7/1995. In the presence of the DCP of Bangalore Police, search of the briefcase and shoulder bag produced by the appellant was done and the revolver was recovered from his possession. The Report of the CFSL states that the damaged fired lead bullets recovered from the head and the neck of the deceased and the damaged fired lead bullet recovered from the carpet in the said flat were fired from the said revolver. The hole in the ply was also caused by the shot fired from the said revolver. Though the incident in question was widely published the appellant never sought to contact any one. Abscondence of the appellant is an important circumstance and lends support to the case of the prosecution. His conduct is relevant under Section 8 of the Indian Evidence Act. [Swamy Shraddananda alias Murali Manohar Mishra v. State of Karnataka[2]]
i) The car of the appellant bearing No.DL-2CA-1872 was found abandoned at Malcha Marg on 4/7/1995. On information received by PW-81 IO Niranjan Singh, the same was seized. Dry human blood was found in the dicky of the said car. The key of this car was recovered at the Pai Vihar Hotel at Bangalore in the presence of the appellant and his advocate. The testimony of PW- 81 IO Niranjan Singh about the recovery of the car at Malcha Marg has not been questioned in cross-examination. Thus, all the circumstances clearly establish the prosecution case. The conviction of the appellant deserves to be confirmed.
ANALYSIS OF EVIDENCE IN LIGHT OF SUBMISSIONS OF THE COUNSEL.
26. We shall now consider the submissions of the counsel in light of evidence on record. Since this is a case based on circumstantial evidence, we must see whether chain of circumstances is complete and points unerringly to the guilt of the appellant. It is first necessary to see the background of the case. The fact that the appellant and the deceased were staying at the said flat as husband and wife can hardly be disputed. PW-12 Matloob Karim, who was known to the appellant and the deceased stated that in the year 1989, he was the Organizing Secretary of Youth Congress. At that time, the appellant was its President and the deceased was General Secretary of its Girls Wing.
He stated that he knew the deceased from 1984 when they were in the Students Union of Delhi University and because of their close association, they had fallen in love with each other. However, they could not marry because they belonged to different religions. He stated that he got married in December, 1988. The deceased got married to the appellant in the year 1992 and informed him about it. He further stated that after her marriage, she was staying with the appellant at the said flat. CW-1 Mrs. Jaswant Kaur, the mother of the deceased, CW-2 Sardar Harbhajan Singh, the father of the deceased and PW-82 Ram Niwas Dubey, who was the personal servant of the appellant also confirmed this fact. Pertinently, no suggestion was put to them in the cross-examination that what they were saying was false.
In this connection, it is important to note that the DNA Report [Ex-PW-87/A] confirms that the dead body which was burnt at Bagia Restaurant was that of the deceased, who was the biological offspring of CW-1 Mrs. Jaswant Kaur and CW-2 Sardar Harbhajan Singh. PW-11 Mrs. Chaudhary, a retired Government servant, was staying along with her husband in Flat No.8/2-B, which was in front of the appellant's Flat No.8/2- A. She stated that the appellant was living with his wife i.e. the deceased in the said flat. Her husband PW-9 M.L. Chaudhary corroborated her evidence. According to PW-11 Mrs. Chaudhary, the deceased was last seen with the appellant in the evening of 2/7/1995 in the said flat. Though his statement recorded under Section 313 of the Cr.P.C. , in answer to one of the questions, the appellant stated that he was the President of NSU(I); that he knew the deceased since 1985; that the deceased was living with his parents at Gole Market and that he had no contact with her after 1985, while answering another question, he admitted that he was living with the deceased in the said flat. PW-15 HC Amba Das was the beat constable of Mandir Marg Area at the relevant time. According to him, once he had gone to the house of the appellant for verification of the quarters.
At that time, the appellant told him that he should take care of the Car bearing No.DAC 3285 belonging to his wife and his Car bearing No.DL-2CA-1872 as the vehicles were increasingly being stolen. According to him, the appellant also told him that since during the day time they were out, he should take care of their house. Admittedly, Car bearing No.DAC 3285 belonged to the deceased. It may be noted here that on 5/7/1995, this car was seized by PW-81 IO Niranjan Singh when it was parked below the said flat. We are, therefore, of the opinion that the prosecution has successfully proved that the appellant and the deceased were married and they were staying in the said flat as husband and wife and that the deceased was last seen in the company of the appellant in the said flat on the evening of 2/7/1995 by PW- 11 Mrs. Chaudhary.
27. The appellant's connection with the Bagia Restaurant is very crucial to the prosecution because the infamous tandoor was situated there. The appellant has not disputed that the Bagia Restaurant is run as per the agreement with the ITDC. In his statement recorded under Section 313 of the Cr.P.C. , he stated that his Manager at Bagia Restaurant was one Mr. Handa and his Accountant was one Mr. Karan. He admitted that A2-Keshav was employed in Bagia Restaurant. A2-Keshav has also admitted this fact. Thus, the prosecution has successfully proved that the appellant was the owner of Bagia Restaurant.
28. From the evidence on record, it is clear that all was not well between the appellant and the deceased. PW-12 Matloob Karim has admitted that the deceased and he were in love with each other but they could not marry because they belonged to different religions. His evidence indicates that he got married to a Muslim girl in December, 1988. According to him, the deceased told him that she had married the appellant in the year 1992. He stated that even after his marriage, he and the deceased used to meet and talk. According to him, in August, 1989, the deceased told him to enquire about the antecedents of the appellant. She told him that the appellant had proposed to her.
According to this witness, he had told her that the appellant was not a good person. The deceased phoned him sometimes in the year 1992 and stated that she had got married with the appellant and that prior to the marriage, she had disclosed their friendship to the appellant. Six months thereafter, he received a call from the deceased stating that she was trapped; that the appellant was not a good man and that he used to abuse and thrash her on trivial matters. The deceased again phoned him and told him that the appellant had thrown her out of their house. On 2/7/1995 between 3.00 p.m. to 4.00 p.m., the deceased telephoned him and told him to help her to migrate to Australia. The evidence of this witness is criticized on the ground that he is not a person of good character because he admitted that even after marriage, he continued to have relationship with the deceased.
It is contended that he was inimically disposed towards the appellant and, therefore, he had falsely implicated him. We find no substance in this submission. Assuming this witness loved the deceased and he continued to meet her after her marriage with the appellant that, in our opinion, has no relevance. His evidence has a ring of truth. By falsely implicating the appellant, he would not have gained anything. In our opinion, this witness is worthy of credence. PW-82 Ram Niwas Dubey's testimony also throws light on this aspect. His association with the appellant began in the year 1989 when the appellant was the President of Youth Congress (I). He was working as a peon with him till April, 1995. He stated that the appellant obtained the said flat in 1992. The appellant lived with his wife i.e. the deceased in the said flat. He knew the deceased since 1992 as she was the General Secretary of Youth Congress and used to visit the appellant at his office at Talkatora. After the appellant's marriage with the deceased, he was working with the appellant and was living in the said flat. He stated that the appellant and the deceased used to quarrel on the topic of marriage.
The deceased used to ask the appellant as to when he would make their marriage public. The appellant used to tell her that he will disclose their marriage to the people at the appropriate time. According to him, there used to be frequent quarrels between the two and the appellant used to beat the deceased with legs, fists and dandaa. He further deposed that as directed by the appellant, he used to accompany the deceased to keep a watch on her movements because the appellant suspected her fidelity. The defence has not elicited anything in the cross-examination of this witness, which can persuade us to discard his testimony. PW-11 Mrs. R.K. Chaudhary, the neighbour of the appellant and the deceased, stated that once when they were watching T.V. in their house, they heard a noise coming from outside.
They opened the door of the drawing room and saw that scuffle was going on between the appellant and the deceased. The deceased wanted to go out of the house but the appellant was pulling her back inside the house. This witness has no reason to concoct a story. She appears to us to be a reliable witness. Though the father and the mother of the deceased, the neighbours of the appellant and the deceased and their servant knew that the appellant and the deceased were staying together and the parents of the deceased stated in the court that the appellant and the deceased were married to each other, the marriage was not made public.
The deceased wanted the marriage to be made public. The appellant was reluctant to do so and was suspecting her fidelity. On account of this suspicion, he used to quarrel with her and beat her. He had asked PW-82 Ram Niwas Dubey to keep watch over her movements and had also put restrictions on her movements. On account of this, the deceased was making efforts to leave him. It appears that perhaps the appellant did not want to make the marriage public because the deceased was continuing her relationship with PW-12 Matloob Karim even after marriage.
These circumstances established by evidence adduced by the prosecution lead us to conclude that there was a strong motive for the appellant to do away with the deceased. It was urged that the appellant was deeply in love with the deceased and despite knowing her relationship with PW-12 Matloob Karim, he did not drive her out. He only restricted her movements because he wanted to stop her from her wayward ways. He would have, therefore, never killed her. In our opinion, the appellant's love for the deceased does not dilute the prosecution case on motive. In fact, it strengthens it.
29. That there was fire in the Bagia Restaurant around 10.30 p.m. on 2/7/1995 and that, at that time, the appellant was present near the Bagia Restaurant is established by the prosecution by leading reliable evidence. PW-7 Mrs. Anaro Devi who was running a vegetable shop near Ashok Yatri Niwas stated that two years back at about 11.30 p.m. on 2/7/1995 when she was present at her shop, a fire broke out in Bagia Restaurant. One constable and home guard came there. She informed them about the fire. PW- 3 HC Kunju stated that on 2/7/1995 he was posted as Constable at P.S., Connaught Place. PW-4 Home Guard Chander Pal was with him. When they reached near Ashok Yatri Niwas at about 11.20 p.m., they found that fire had broken out in the Bagia Restaurant.
He rushed to the Police Post, Western Court and gave information to the police through wireless. On reaching the spot, he saw flames coming up from the Bagia Restaurant. He entered the restaurant along with PW-4 Home Guard Chander Pal and saw A2- Keshav standing near the tandoor. He was putting pieces of wood into the tandoor and was shuffling the same with a long wooden stick. On enquiry, A2-Keshav told him that he was a Congress Party worker and he was burning the old banners, posters and waste papers, etc. of the Congress Party. In the meantime, the patrolling officer SI Rajesh Kumar, the staff of PCR and security officials Rajiv Thakur and PW-35 Mahesh Prasad also came there.
According to him, he saw the appellant near the gate of the Bagia Restaurant. PW-35 Mahesh Prasad told him that the appellant was the owner of the Bagia Restaurant. PW-3 HC Kunju identified the appellant at the police station as the same person whom he had seen at the gate of the Bagia Restaurant. PW-4 Home Guard Chander Pal stated that on 2/7/1995, when he was on patrolling duty along with PW-3 HC Kunju, they reached Ashok Yatri Niwas at about 11.30 p.m. They saw fire at the Bagia Restaurant. PW-3 HC Kunju went and phoned the police station and came back. Both of them scaled the wall and entered the Bagia Restaurant for extinguishing the fire. They saw A2-Kesahv trying to stoke the fire with the help of a wooden stick. When asked, A2-Keshav told them that he was burning the old banners and posters of the Congress Party.
He further stated that the appellant was standing there wearing white coloured kurta pyjama. He was so informed by PW-35 Mahesh Prasad. He further stated that the appellant came near the tandoor and shuffled the fire with wooden stick and, thereafter, he left from there. He stated that he identified the appellant at the police station. CW-5 HC Majid Khan deposed that in the night of 2/7/1995, he was on duty on PCR vehicle driven by Ranbir Singh. They went to Ashok Yatri Niwas for drinking water and there they noticed the fire in Bagia Restaurant. They went towards the gate of Bagia Restaurant. There was a kanat fixed at the gate and one man was standing there.
The man told them that they were burning the old banners and waste papers and flags of Congress Party and that he was the leader of Youth Congress. PW-35 Mahesh Prasad then told them that that man was the owner of Bagia Restaurant and his name was 'Sushil Sharma'. According to him, A2-Keshav was stoking the fire. He stated that A2-Keshav was apprehended at the spot. PW-1 Philips's evidence is also important. He was working as a Stage Programmer in Bagia Restaurant. This fact is confirmed by PW-5 K.K. Tuli, the General Manager of Bagia Restaurant. According to PW-1 Philips, on 2/7/1995, he was on duty from 8.00 p.m. to 12.00 midnight. He stated that he and his wife PW-2 Mrs. Nisha were to stage a performance on that day. One guest had come to see him.
He had gone to see off that guest at 9.30 p.m. or 9.45 p.m. When he came back, he saw the appellant coming there in Maruti Car No.1872. After 5-7 minutes, A2-Keshav asked him to stop the programme and go back to his house as his duty was over. He obeyed and left for his house along with his wife PW-2 Mrs. Nisha. While going, he saw the appellant sitting in his Maruti car which was standing at the gate. PW-2 Mrs. Nisha corroborated PW-1 Philips. She stated that she had seen the appellant at about 10.15 p.m. at the gate of Bagia Restaurant in Maruti Car No.1872. PW-5 K.K. Tuli, General Manager of Bagia Restaurant stated that around the time when the incident occurred, the appellant used to visit the Bagia Restaurant every day. All these witnesses have stood firm in the cross-examination.
30. PW-3 HC Kunju stated that since foul smell was emanating from the tandoor, he and SI Rajesh Kumar went near the tandoor out of suspicion. They saw a human body whose hands and feet were completely burnt and whose intestines were protruding out from the stomach in the tandoor. On a close look, they found that the dead body was of a female. PW-4 Home Guard Chander Pal corroborated PW-3 HC Kunju on this aspect. He stated that a body of a woman was found lying in the tandoor. It's bones were cut and intestines were protruding. PW-5 K.K. Tuli, the General Manager of Ashok Yatri Niwas stated that on receiving telephonic information from the security staff, he went to the Bagia Restaurant and found a dead body of a woman in burnt condition lying amongst the wood pieces in tandoor.
There is no challenge to these statements of the witnesses in the cross- examination. On receiving information, senior police officers including PW- 81 IO Niranjan Singh reached the spot. Photographs of the dead body were taken by PW-74 HC Hari Chand. He produced the photographs of the dead body (Ex-PW-74/9 to 16) and negatives thereof (Ex-PW-74/1 to 8). PW-75 Inspector Jagat Singh and PW-81 IO Niranjan Singh have also deposed about it. A2-Keshav was handed over to PW-81 IO Niranjan Singh. PW-81 IO Niranjan Singh recorded the statement of PW-3 HC Kunju, which was treated as FIR. In the FIR, PW-3 HC Kunju narrated all the events which took place after he reached the Bagia Restaurant till his statement was recorded. It is necessary to note here that he specifically mentioned about the presence of the appellant.
He made it clear that he was informed about the appellant's presence by the Security Guard PW-35 Mahesh Prasad. He stated that the Security Guard PW-35 Mahesh Prasad told him that the appellant, who is the owner of the Bagia Restaurant was standing there. He noted the presence of the appellant and A2-Keshav. He stated that A2-Keshav was detained, however, the appellant had run away. He also stated about the finding of burnt body of an unknown lady in the tandoor.
31. It must be mentioned here that PW-35 Mahesh Prasad has not supported the prosecution on this aspect. He stated that he had not seen the appellant on that day at the Bagia Restaurant. It appears that he was won over by the defence. Tenor of his evidence suggests that he was hiding the truth and favouring the appellant. The trial court has rightly commented on his demeanor and stated that his demeanor indicates that he was won over by the appellant. In the circumstances, we see no reason to disbelieve PW-1 Philips, PW-2 Mrs. Nisha, PW-3 HC Kunju, PW-4 Home Guard Chander Pal and CW- 5 HC Majid Khan. In any case, even if we leave the evidence of PW-3 HC Kunju, PW-4 Home Guard Chander Pal and CW-5 HC Majid Khan out of consideration on this aspect, the evidence of PW-1 Philips and PW-2 Mrs. Nisha establishes the presence of the appellant
