Sheetal vs State

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.

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 PW4/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.

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.

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 natureâ€​.

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-accusedâ€

Sheetal and the brother of the co-accusedâ€" 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.

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.

On 04.03.2014, the wife of the deceased Sheetal@kamaljeet 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.

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 rodâ€​.

During the investigation, the call details of the mobile phone number of the deceased Satwant Singh, and his son Napinder@Nonu were called for

and checked. After the call detail analysis was done, it was discovered that the accused Shetal@Kamaljeet 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

Sheetal@kamaljeet 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

Sheetal@kamaljeet Kaur to inform her that Satwant Singh had been killed. Thereafter, Sheetal@Kamaljeet 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. Â On completion of investigation, charge sheet was filed in the Court.

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.

To prove its case, the prosecution examined 24 witnesses including, Mr. Napinder Singh@Nonu (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.

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.

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.

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 Sheetal@Kamaljeet 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 Sheetal@Kamaljeet Kaur throughout, when Sheetal@Kamaljeet 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.

To support this argument, Ld. counsel has referred to Ex. PW 5/Bâ€" 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-

Sheetal@Kamaljeet 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.

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.

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.

We have heard Ld. Counsels and have given our thoughtful consideration to the matter.

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.

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.

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:

Ex. PW-20/2â€" 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.

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

contraindicates the hatching of a conspiracy between the two accused to commit such a serious crime.Â

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.

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 PW24. 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. PW5Rajeev 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.

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.

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.

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

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....â€​

(emphasis supplied)

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.â€​

(emphasis supplied)

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.

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.

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.

PW8-brother of Sheetal@Kamaljeet 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.

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.

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.

Now the only allegation remaining against the accused Inderjeet Singh is for the offence under Section 302 IPC.

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 â€" 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.

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.

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.â€​

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.

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 noninvolvement/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.

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 othersâ€. 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.

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] .)â€​

(emphasis supplied)

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.

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.

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. Â

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.

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.

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, DW1 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.

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. Â

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. Â

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 houseâ€​. Â

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.

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. Â

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 crossexamination 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.

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.

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]â€​ .

(emphasis supplied)

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 haiâ€)†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 haiâ€. 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 washingâ€. He also denied the suggestion “that accused Inderjeet had never brought his car to me and had never had the seat covers

removedâ€​. He denied the suggestion that he was deposing falsely under the pressure of police.

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 â€" 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. Â

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.

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 â€" 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.

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. PW15/2 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. Â

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.

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.

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.

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.

Consequently, both the appeals stand disposed of in the aforesaid terms.