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TMI Blog2013 (5) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of fine, to undergo further rigorous imprisonment for three months under Section 404 IPC. However, both the substantive sentences have been ordered to run concurrently. 2. Facts and circumstances as per the prosecution in brief, are as under: A. Appellant got married to Sonia (since deceased), aged 30 years, in March 2003. It was an inter-caste marriage, and thus, was not approved of by Sonia's family members. They had both studied Pharmacy together. After passing the Pharmacy Course, Sonia (deceased) was appointed as a Lecturer in the B.S.A. Pharmacy College, Faridabad, and she was also working as a Warden in the Girls' hostel of the said Pharmacy College, situated in Kothi No. 783, Sector 21-A, Faridabad. The married life of the couple was not happy and they thus filed a Divorce Petition on the basis of mutual consent under Section 13-B of the Hindu Marriage Act, 1955 before the Family Court, Rohtak. The first motion was complete and the second motion had been fixed for 3.9.2004. B. On 2.9.2004, Sonia (deceased) sent a telephonic message to her mother, Smt. Dhanpati Devi (PW.3), stating that in the previous evening, the appellant Rohtash had come to meet her in the hos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode of Criminal Procedure, 1973, (hereinafter referred to as `the Cr.P.C.'), and all the incriminating material/circumstances were put to him one by one. He denied each allegation levelled against him by repeatedly stating, "It is incorrect." The appellant did not himself, adduce any evidence in defence. The learned Sessions Court, after appreciating all the evidence and the submissions made by the public prosecutor and the defence counsel, convicted and sentenced the appellant as has been referred to hereinabove. H. Aggrieved, the appellant preferred an Appeal before the High Court, which has been dismissed vide impugned judgment and order dated 5.2.2009. Hence, this appeal. 3. Dr. Sushil Balwada, learned counsel appearing on behalf of the appellant has submitted, that there was no eye-witness to the occurrence and that the prosecution had failed to prove and meet the parameters laid down by this Court for conviction in a case of circumstantial evidence. Even if there had been some discord in their marriage, they had agreed to separate mutually and the second motion of the Divorce Petition filed by mutual consent, had been fixed for next day i.e. 3.9.2004. Thus, there had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct of the appellant clearly indicates that he has committed the offence. The concurrent findings of fact recorded by the courts below do not warrant any interference and therefore, the appeal is liable to be dismissed. 5. We have considered the rival submissions made by learned counsel for the parties, and perused the record. Before we enter into the merits of the case and its factual matrix, it is desirable to deal with the legal issues involved herein. Case of Circumstantial evidence: 6. The present case is of circumstantial evidence, as there exists no eye-witness to the occurrence. The primary issue herein involves determination of the requirements for deciding a case of circumstantial evidence. 7. This Court, in R. Shaji v. State of Kerala, AIR 2013 SC 651 has held, "the prosecution must establish its case beyond reasonable doubt, and cannot derive any strength from the weaknesses in the defence put up by the accused. However, a false defence may be brought to notice, only to lend assurance to the Court as regards the various links in the chain of circumstantial evidence, which are in themselves complete. The circumstances on the basis of which the conclusion of guilt is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1965 SC 202, this Court held that it would be unsound to lay down as a general rule, that every witness must be examined, even though, the evidence provided by such witness may not be very material, or even if it is a known fact that the said witness has either been won over or terrorised. "In such cases, it is always open to the defence to examine such witnesses as their own witnesses, and the court itself may also call upon such a witness in the interests of justice under Section 540 Cr.P.C.". (See also: Bir Singh & Ors. v. State of U.P., (1977) 4 SCC 420) 11. In Darya Singh & Ors. v. State of Punjab, AIR 1965 SC 328, this Court reiterated a similar view and held that if the eye-witness(s) is deliberately kept back, the Court may draw inference against the prosecution and may, in a proper case, regard the failure of the prosecutor to examine the said witnesses as constituting a serious infirmity in the proof of the prosecution case. 12. In Raghubir Singh v. State of U.P., AIR 1971 SC 2156, this Court held as under: "…Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant mul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated." 15. In Banti @ Guddu v. State of M.P., AIR 2004 SC 261, this Court held: "In trials before a Court of Session the prosecution "shall be conducted by a Public Prosecutor". Section 226 of the Code of Criminal Procedure, 1973 enjoins on him to open up his case by describing the charge brought against the accused. He has to state what evidence he proposes to adduce for proving the guilt of the accused. ……If that version is not in support of the prosecution case it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for prosecution. When the case reaches the stage envisages in Section 231 of the Code the Sessions Judge is obliged "to take all such evidence as may be produced in support of the prosecution". It is clear form the said section that the Public Prosecutor is expected to produce evidence "in support of the prosecution" and not in derogation of the prosecution case. At the said stage the Public Prosecutor would be in a position to take a decision as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be shown that the prosecution has been influenced by some oblique motive." In an extra- ordinary situation, if the court comes to the conclusion that a material witness has been withheld, it can draw an adverse inference against the prosecution, as has been provided under Section 114 of the Evidence Act. Undoubtedly, the public prosecutor must not take the liberty to "pick and choose" his witnesses, as he must be fair to the court, and therefore, to the truth. In a given case, the Court can always examine a witness as a court witness, if it is so warranted in the interests of justice. In fact, the evidence of the witnesses, must be tested on the touchstone of reliability, credibility and trustworthiness. If the court finds the same to be untruthful, there is no legal bar for it to discard the same. Discrepancies in the depositions: 18. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence in its entirety. Therefore, unless irrelevant details which do not in any way corrode the credibility of a witness s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1979). Therefore, the law permits the court to take into consideration the deposition of a hostile witness, to the extent that the same is in consonance with the case of the prosecution, and is found to be reliable in careful judicial scrutiny. Motive: 21. The evidence regarding the existence of a motive which operates in the mind of the accused is very often very limited, and may not be within the reach of others. The motive driving the accused to commit an offence may be known only to him and to no other. In a case of circumstantial evidence, motive may be a very relevant factor. However, it is the perpetrator of the crime alone who is aware of the circumstances that prompted him to adopt a certain course of action, leading to the commission of the crime. Therefore, if the evidence on record suggests adequately, the existence of the necessary motive required to commit a crime, it may be conceived that the accused has in fact, committed the same. (Vide: Subedar Tewari v. State of U.P. & Ors., AIR 1989 SC 733; Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420; and Dr. Sunil Clifford Daniel v. State of Punjab, (2012) 11 SCC 205). Explanation of the accused: 22. It is ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him. Police official as a witness: 26. The term witness, means a person who is capable of providing information by way of deposing as regards relevant facts, via an oral statement, or a statement in writing, made or given in Court, or otherwise. In Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra, AIR 1995 SC 1930, this Court examined the issue of the requirement of the examination of an independent witness, and whether the evidence of a police witness requires corroboration. The Court herein held, that the same must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belonged to the police force, and are either interested in the investigating or the prosecuting agency. However, as far as possible the corroboration of their evidence on material particulars, should be sought. (See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212; Balbir Singh v. State, (1996) 11 SCC 139; Kalpnath Rai v. State (Throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, i.e., the appellant accused had reached there. They had engaged in some conversation. The next day, Sonia had come back from college at about 1.00 p.m., and shortly after, the appellant had also arrived there. Ghanshyam, the watchman had been told by the appellant that he was husband of the warden and wanted to meet her. Ghanshyam had not initially permitted him to enter the hostel, but had allowed his entry after taking permission from Sonia. The appellant and Sonia had then sat together in the verandah of the hostel, and had spoken for about 30-40 minutes. Both of them had then left the hostel, and had returned only after about one hour. After their arrival, the witness had served them tea. Thereafter, she had gone to bathroom to wash clothes, and when she returned after about 20-25 minutes, she had enquired from Ghanshyam regarding the whereabouts of Sonia and her husband. She had then been told that Sonia was in her room, whereas the appellant had already left the hostel alone. While going Sonia's room, she had found her lying dead in the garden, near the plants in the hostel. Seeing her dead, the witness was frightened. 30. Mukesh Chand (PW.9), has proved the pendency of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination on the body of Sonia, and he has deposed that there was bleeding with clotted blood present in the bilateral nostrils, and on the right side of the mouth. Rigor mortis was present in all the four limbs with postmortem staining on dependent parts. Multiple abrasions were present on the front of the neck, with large reddish contusions- bilateral shoulders, more on the right side. Abrasions numbering four of the size 2.5 x 0.75 cms., were present on the right side, just below the clavicle and four of these in number were present on its left side. On dissection, the muscle of the neck was contused with hemorrhage with a fracture of the thyroid cartilage, and a fracture of the tracheal rings with blood clots in the trachea. The adjoining muscles and upper chest muscles were contused extensively with blood clots, with bilateral fractures of the clavicle bone and the upper second and third ribs. In his opinion, the cause of death was asphyxia caused as a result of smothering and throttling, which was ante-mortem in nature and was sufficient to cause death in the natural course. He has further deposed, that she had died within two minutes of the offence, and before 24 hours of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a wrist watch (Ex.P-56), and a letter (Ext.P-55). (viii) On 2.9.2004, the appellant had made certain telephone calls from the mobile phone belonging to Sonia, to the mother as well as to several other relatives of the deceased, informing them about the murder of Sonia that had been committed by him, and had further stated that he would commit suicide. (ix) A diary (Ex. P-54), a letter (Ex.P-55) and a wrist watch (Ex.P- 56), belonging to the appellant were recovered from the Taneja Guest House. A suicide note had been written in the said diary by the appellant, and a letter had also been written by him to the Superintendent of Police, Faridabad, the District Collector, the Chief Justice, High Court of Punjab & Haryana, and the Human Rights Commissioner, suggesting his involvement. The recovery memo of the same (Ex.P-5), bears the signatures of Jagatpal (PW.2) and Mahender Singh, employees of the Taneja Guest House, Faridabad. (x) The appellant had remained absconding for several days, and after his apprehension, the mobile phone belonging to Sonia was recovered from the shop of Sonu at Itarsi, Madhya Pradesh on the basis of a disclosure statement made by him. The disclosure stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had stayed at the Taneja Guest House, by providing a fictitious name and false address and nor was any explanation provided by him with respect to the circumstances under which, the mobile phone belonging to Sonia, had come to be in his possession. Admittedly, this is a case of a love marriage which had gone wrong. Owing to such marital discord, they had decided to separate and to get divorce by mutual consent. Therefore, it might have been frustration which had forced the appellant to commit such a heinous crime. 38. From the undelivered letter that had been written by the appellant in the name of Superintendent of Police and to others, in Ex.P-54 recovered from the Taneja Guest House, it is evident that the appellant had developed intimacy with Sonia (deceased) much earlier, and had claimed to have married her in a temple, though, the formal marriage between them had taken place in the year 2003. The said letter reveals, that Sonia (deceased) and her family members had tortured him mentally, and had extracted a huge amount of money from him over a period of the past ten years. He had even persuaded his friends, relatives and family members to give a loan to the complainant, Sube ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d), and later recovered, showed some variance. H. The journey from Faridabad to Itarsi and from Itarsi to Faridabad has not been proved. I. The Booking Register of the Taneja Guest House does not prove that the appellant had stayed in the said Guest House. 41. We have examined the aforesaid discrepancies pointed out by the learned counsel. It may be stated herein that some of the issues have been explained by the prosecution, however, no attempt was ever made by the defence to put most of these issues to SI Vinod Kumar (PW.20), the Investigating Officer in his cross-examination. It is evident from his deposition that he had, in fact, answered all the questions that were put to him in the cross-examination. However, it is pertinent to clarify that most of these questions that are being currently raised before us were not put to him. For example, he has explained that nobody from the said market had been ready to become the Panch witness for recovery of the mobile phone from Sonu's shop at Itarsi, and that even Sonu was not ready to do so. Further, no question had been put to him in the cross-examination regarding the different EMEI number of the said mobile phone. The mobile phone ..... X X X X Extracts X X X X X X X X Extracts X X X X
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