THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 02.06.2011
+ CRL.A. No. 979/2010
Harvinder Singh ..... Appellant
versus
The State (Govt. of N.C.T) .... Respondent
Advocates who appeared in this case:-
For the Appellant :Mr Mukesh Kalia with Mr Ankur Sharma, Advocates.
For the Respondent : Ms Richa Sharma, APP
CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MS JUSTICE VEENA BIRBAL
1. Whether reporters of local papers may be allowed
to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
VEENA BIRBAL, J
1. The present appeal is directed against the judgment dated 27th
July, 2010 passed in Sessions Case No. 37/2009, by the learned
Additional Sessions Judge, Delhi, arising out of FIR No.426/2003,
registered at Police Station I.P. Estate, under Sections 363/302/201/34
IPC wherein the appellant, namely, Harvinder Singh has been
Crl.A. 979/2010 Page 1 of 33
convicted under Section 302/201 IPC. The appeal is also directed
against the order of sentence dated 30.07.2010 whereby the appellant
was sentenced for the offence punishable under Section 302 IPC to
undergo imprisonment for life and to pay a fine of Rs. 3000/- and in
default to undergo S.I. for three months and under Section 201 IPC to
undergo R.I. for five years and to pay a fine of Rs. 2,000/- in default to
undergo S.I. for two months. It is further ordered that both the
sentences shall run concurrently.
2. On 30th November, 2003 at about 11.40 pm, complainant
Avtarjeet Singh (PW2) went to Police Post J.P.N. Hospital, P.S. I.P.
Estate, and informed that his daughter Manpreet Kaur aged seventeen
& half years, a student of B.A (Pass) 1st Year had gone to Mata
Sundari College on the aforesaid date at 9 am. Her friend, namely,
Sarabjeet Kaur had seen her last at 12 noon and thereafter she was not
seen by anyone and found missing from her college. On the basis of
his information, DD No.38 (Ex.PX-1) got recorded. The same was
assigned to SI Rajesh Shukla PW-13 for enquiry. During enquiry, he
conveyed the message through wireless net and missing person‟s
squad and also made efforts to trace Manpreet Kaur from relatives but
could not succeed.
Crl.A. 979/2010 Page 2 of 33
On 17th December, 2003, the complainant Avtarjeet Singh
(PW-2) again went to Police Post JPN Hospital, Police Station I.P
Estate and gave statement (Ex.PW2/A) to SI Aftar Ali (PW-12) about
the fact that his daughter was missing since 30th November, 2003 and
also informed about recording of DD No.38 Ex PX-1 in this regard.
SI Aftar Ali (PW12) made endorsement Ex.PW12/A on it and
prepared ruqqa and got the case registered vide FIR Ex.PW1/A
through Constable Dhani Ram (PW-7). The investigation was
assigned to SI Rajesh Shukla (PW-13) who made efforts to trace
Manpreet Kaur but no clue could be found. During investigation,
complainant Avtarjeet Singh (PW-2), disclosed that accused
Harvinder Singh was the brother-in-law of the deceased. He also gave
his mobile no. as 9811656501 and also informed that he used to talk to
Manpreet Kaur frequently. SI Rajesh Shukla PW 13 collected mobile
phone details of the said phone from Hutch Essar Company vide mark
„A‟ and noticed frequent calls from the said mobile phone to the land
line number i.e. 2519918 installed at the house of the deceased. On 3rd
February, 2004, he called appellant Harvinder Singh in police post and
after some interrogation, appellant was discharged by him. On the
Crl.A. 979/2010 Page 3 of 33
same day, investigation was transferred to Anti Homicidal Cell, Crime
Branch and was assigned to Inspector H.S.P.Singh (PW-24).
3. On 4th February, 2004, the Investigating Officer, Inspector
H.S.P.Singh (PW-24) along with ASI Gopi Ram PW-8 and SI
Ravinder Singh PW-6 went to the house of complainant Avtarjeet
Singh (PW2) and apprised him about the transfer of the case to the
Crime Branch. The complainant Avtarjeet Singh had told them about
his suspicion upon his relative Harvinder Singh. Inspector H.S.P.
Singh (PW-24) studied call details (Ex. PW-20/B) of mobile phone of
appellant Harvinder Singh and it was revealed that he was regularly in
touch with the land line phone at the residence of the deceased. Even
on 29.11.2003, three calls were made from the mobile of appellant to
the land line phone of deceased. Thereafter, police team went to the
house of appellant and brought him to the office of Anti Homicidal
Cell for interrogation. During interrogation, the appellant made a
disclosure statement Ex.PW-6/C disclosing therein that he could get
the dead body of Manpreet Kaur recovered from a “ganda nala” at
Chander Vihar. He further disclosed that he could also get recovered
sulphas tablets from his house and could also get the wrist watch of
deceased recovered from a park at Jwala Heri. On the basis of his
Crl.A. 979/2010 Page 4 of 33
disclosure statement Ex.PW-6/C, co-accused Palvinder was also
arrested after completing necessary formalities. On interrogation, he
had also made a disclosure statement Ex.PW-6/D. Pursuant to
aforesaid disclosure statements, the appellant and the co-accused on
04.02.2004 had got recovered the dead body of Manpreet Kaur from
pakka ganda nala near Nilothi village, P.S. Nangloi, Delhi which was
found in a gunny bag and was in a decomposed state. Immediately,
complainant Avtarjeet Singh (PW-2) was called at the spot who came
along with his brother Narender Jeet Singh (PW-3). Both of them had
identified the dead body as that of Manpreet Kaur vide memo
Ex.PW2/B and 3/A respectively. Photographs of the spot as well as
dead body were taken. Inquest proceedings were conducted and the
body was shifted to mortuary. On the next day, both the appellant as
well as co-accused were produced in the court of ACMM and two
days police remand was taken. On the said date, both the accused
persons led the police party to the house of appellant and got
recovered a Maruti car which was parked outside his house which is
alleged to have been used in the commission of crime. From the dash
board of the car, appellant had taken out one sim card. From the small
room of the appellant in his house on the ground floor, he produced
Crl.A. 979/2010 Page 5 of 33
one dibbi on which „Aluminum Phosphate‟ was written, after taking it
out from the waste material. The same were seized vide memo
Ex.PW-6/I. After completing the necessary formalities, the
postmortem of the deceased was got done. On 6th February, 2004,
appellant and co-accused also led the police party to the District Park,
Jawala Heri Road. Inside the park, appellant took out one ladies wrist
watch make Time Star from the bushes. The same was seized by the
IO vide Ex.PW 6/J after completing necessary formalities. During the
course of investigation, statements of witnesses were recorded and the
documents pertaining to mobile phone no. 9811656501 were also
obtained. The TIP of the wrist watch was got done from complainant
Avtarjeet Singh (PW-2). During the course of investigation, the
seized exhibits were sent to CFSL, site plan was got prepared and
statement of PWs were recorded. After completion of investigation a
report under section 173 Cr.P.C was filed. On completion of
investigation, charge sheet was filed against the appellant and the co-
accused before the Metropolitan Magistrate, Delhi. Thereafter, the
learned M.M. committed the case to Sessions Court for trial. The
charges were framed against both the accused persons for having
committed offences punishable under section 363/302/201/34 IPC.
Crl.A. 979/2010 Page 6 of 33
Accused pleaded not guilty to the same and thus had been tried by the
learned Addl. Sessions Judge, Delhi.
4. The prosecution in all had examined 25 witnesses. Out of
which PW-2 Avtarjeet Singh is the father of deceased and Narender
Jeet Singh (PW-3) is the brother of the complainant. Both of them
had identified the dead body of the deceased Manpreet Kaur on 4 th
February, 2004. Shri P.K.Jain, learned ASJ conducted the TIP of the
wrist watch. Sh. Jyotish (PW-20) is the executive of Essar Cellular
Ltd who produced the call details of mobile no.9811656501 from
1.11.2003 till 29.1.2004 Ex.PW 20/B. PW-16, Smt.Kavita Goel is the
senior Scientific Assistant from CFSL who had examined the blood
sample, viscera etc which were sent for examination and had proved
on record necessary report in this regard. Remaining evidence relates
to police and medical witnesses.
5. In their statements under section 313 Cr.P.C, the present
appellant as well as co-accused had denied the incriminating evidence
against them and had stated that they were falsely implicated. In
defence, appellant, Harvinder Singh had examined his father Jaswant
Singh (DW-1) and DW-2 Smt.Parminder Kaur, his wife. Co-accused
had also examined one Manoj Kumar (DW-3) Ministerial Staff,
Crl.A. 979/2010 Page 7 of 33
Government Hospital Jaitaran, Pali District, Rajasthan and DW-4
Dr.Praveen Punmiya in defence.
6. After hearing counsel for the parties, the learned ASJ has
convicted the appellant for the offence punishable u/s 302/201 IPC
whereas co-accused was acquitted of the charges levelled against him
after giving him the benefit of doubt.
7. Aggrieved with the order of conviction and sentence, the
present appeal has been filed by the appellant Harvinder Singh.
8. Learned counsel for the appellant has argued that as per
prosecution case deceased was last seen in the college by her friend
Sarabjeet Kaur. The said Sarabjeet Kaur has not been interrogated by
the police nor has she been made a witness in this case. It is
contended that in view of above lapse on the part of the prosecution, it
cannot be said that Manpreet Kaur had attended the college on that
day. It is contended that the present case is based on circumstantial
evidence. It is contended that circumstantial evidence relied upon by
prosecution is not fully established nor the same proves in any manner
the alleged guilt of the accused. It is contended that as per DD No. 10,
P.P. Nihal Vihar, P.S. Nangloi, Mark-24/A, one dead body had
already been recovered on 4th February, 2004 at 6.30 am whereafter
Crl.A. 979/2010 Page 8 of 33
PCR reached the spot followed by local police and then crime branch
was informed as such it cannot be said that the appellant got recovered
the dead body pursuant to disclosure statement Ex. PW-6/C. It is
contended that aforesaid DD report totally demolishes the alleged
recovery of dead body to police at the instance of the appellant. It is
further contended that alleged incident is of 30 th November, 2003 and
the initial IO SI Rajesh Shukla PW 13 did not have any suspicion over
the appellant and all of a sudden on 4 th February, 2004, the case was
transferred to Crime Branch and was solved in a day. It is contended
that though it was a kidnapping case but investigation has been
conducted by Anti Homicide Cell of crime branch. No justified
reasons are forthcoming as to why case was transferred to Anti
Homicide Cell. It is contended that there is no recovery of dead body
at the instance of appellant. It is further contended that dead body had
already been recovered by the police and the same has been planted
upon appellant by Anti Homicide Cell to solve the murder case. It is
further contended that the dead body was totally decomposed and was
beyond recognition, as such evidence of PWs about identity of
Manpreet Kaur is doubtful. There is also no mention in the missing
report Ex.PX1 and FIR Ex. PW-1/A that the girl was wearing ear
Crl.A. 979/2010 Page 9 of 33
rings, chain, clip whereas as per prosecution case aforesaid articles
were there on the person of alleged body recovered. Learned counsel
further contended that no DNA test was got done, as such it cannot be
said that body was that of the deceased. It is further contended that
there is no evidence that girl was having illicit relations with appellant
and there is no motive for making the alleged crime. It is contended
that record pertaining to mobile phone of the appellant seized during
the investigation is not admissible in law under section 65(B) of the
Evidence Act. It is further contended that even the recovery of wrist
watch and dibbi Ex. P6 containing poisonous substance “Aluminium
Phosphate” alleged to have been seized vide Ex. PW-6/I is also
doubtful.
9. On the other hand, learned APP for the State has argued that the
circumstantial evidence led by prosecution clearly proves the guilt of
appellant. It is contended that identification of dead body by Avtarjeet
Singh PW-2 and Narender Jeet Singh PW-3 read with the evidence of
PW-18 Dr. V.K. Jha clearly established the identity of the dead body.
It is contended that CFSL report Ex. PW-16/A shows that death was
due to poisoning. Learned APP has argued that present case is based
on circumstantial evidence. The prosecution witnesses have proved
Crl.A. 979/2010 Page 10 of 33
all the circumstances forming a complete chain. It is contended that
recovery of dead body from the „nala‟ (drain) at the instance of the
appellant, pursuant to his disclosure statement Ex. PW-6/C,
identification of dead body by her father (PW-2) and uncle (PW-3),
clearly establishes that the same was of Manpreet Kaur. The
postmortem report Ex.PW18/B and the evidence of PW-18 Dr. V.K.
Jha clearly establishes that death was homicidal. It is further
contended that evidence on record clearly establishes the recovery of
„dibbi‟ of poisonous substance and wrist watch Ex. P1 at the instance
of appellant. It is further contended that it has also come in evidence
that appellant Harvinder Singh was closely related to deceased. It is
contended that call details Ex. PW-20/B shows that appellant was near
the place on 30.11.2003 where the dead body was got recovered by
him on 04.02.2004. The tower shows his presence at Meera Bagh at
1533 hours. It is contended that it is admitted position that accused
was closely related to Avtarjeet Singh (PW-2) being son-in-law of his
sister-in-law. It has also come in the evidence that Avtarjeet Singh
(PW2) had told the appellant not to come to his house in his absence.
10. We have heard counsel for the parties.
Crl.A. 979/2010 Page 11 of 33
11. The fact that Manpreet Kaur was missing w.e.f. 30.11.2003
stands established from the testimony of Avtarjeet Singh, PW-2,
father of deceased who has deposed that Manpreet Kaur was his
daughter and was a student of Mata Sundri College. On 30 th
November, 2003, she left the house at 9 am. She generally used to
return from college at 2.30 pm but on that day, she did not return
home as such he informed the police station where DD No.38, i.e., Ex.
PX-1 was recorded. Again he went to the police station on 17th
December, 2003 wherein his statement Ex.PW1/A was recorded, on
the basis of which FIR Ex.PW-1/A was registered. There is no
suggestion to Avtarjeet Singh PW2 that deceased did not go to attend
college on that day or that false report was lodged by him.
12. The case of the prosecution is that when Manpreet Kaur could
not be traced, her father Avtarjeet Singh (PW2) had raised suspicion
over appellant Harvinder Singh, as is evident from the testimony of
ASI Gopi Ram PW-8 and Inspector H.S.P. Singh PW-24 and his call
details were studied and it was revealed that he was regularly in touch
with the deceased on the land line phone of Complainant PW-2. It has
also come in evidence that appellant is son-in-law of sister-in-law
(Sali) of the complainant (PW2). It has also come in the evidence of
Crl.A. 979/2010 Page 12 of 33
PW-6, PW-8 and PW-24 that appellant had made a disclosure
statement Ex. PW-6/C and pointed out the place near „ganda nala‟
vide memo Ex. PW-6/F and got recovered the body of Manpreet Kaur
which was in a gunny bag from the said nala. The witness to the
recovery of the dead body contained in a gunny bag, are SI Ravinder
Singh (PW-6) and ASI Gopi Ram (PW-8) and Inspector H.S.P. Singh
(PW-24).
13. The stand of the appellant is that DD No.10, P.P. Nihal Vihar,
P.S. Nangloi, mark 24/A, recorded at 6.30 a.m., shows that police of
Police Post Nihal Vihar had come to know about a dead body lying in
a bori (gunny bag) whereas the appellant was arrested at about 4.00
pm, as per the arrest memo Ex.PW-24/A and it has also come in the
evidence that disclosure statement was recorded thereafter as such it
can‟t be said that pursuant to disclosure statement Ex. PW-6/C, the
appellant got the dead body recovered. Learned APP has shown us
the original relevant DD register, as per which DD No.10 was actually
recorded on 4th February, 2004 at 6.30 pm as the said register records
the entries from 8 am to 8 pm. It appears there is a bona fide mistake
in recording the time of 6.30 a.m. on DD Mark 24/A. The entry prior
to it in the original register shown to us is also of „p.m.‟ Learned APP
Crl.A. 979/2010 Page 13 of 33
has also referred to DD No.15 Mark 24/B dated 4th February, 2004
recorded at PP Nihal Vihar P.S.Nangloi at 9 pm wherein it is recorded
that pursuant to DD No.10 Mark 24/A, ASI Ram Pal (PW-9) along
with one Constable had gone to ganda nala and found that crime
team was already present there and was investigating the case FIR
No.426/2003 u/s 363 IPC and was also informed that a dead body had
been recovered from the ganda nala and accordingly DD No.10 was
filed. In view of the above position, it cannot be said that the dead
body had already been recovered and the same was planted on the
appellant to solve a dead case, as is alleged.
14. The evidence of S.I. Ravinder Singh PW-6, ASI Gopi Ram PW-
8 and Inspector H.S.P. Singh PW-24, shows that the dead body of
Manpreet Kaur was recovered pursuant to the disclosure statement of
accused Ex.PW6/C. S.I. Ravinder Singh PW-6 has also categorically
deposed that both the appellant and co-accused led the police party to
the ganda nala near SDM School Chander Vihar by disclosing that
they had thrown the gunny bag containing the dead body of deceased
Manpreet Kaur in the „ganda nala‟ at that place. He pointed out the
said place vide pointing out memo Ex.PW6/F. The efforts were made
to trace the dead body through the track of flow of water in the ganda
Crl.A. 979/2010 Page 14 of 33
nala. After covering a distance of 1.5 km, there was a place where
water was found accumulated due to some obstruction. At that place
one gunny bag was observed submerged in water. It was taken out. It
was opened and the dead body was recovered from the same.
15. ASI Gopi Ram PW-8 has also deposed that pursuant to
disclosure statement Ex.PW6/C, search was made for dead body in the
nala. It had running water. They were able to trace the bag in which
the dead body was concealed, after travelling a distance of about 1-1/2
km following the flow of the water towards Nangloi. The bag was
found entangled with a siphon. The bag was taken out from the nala.
It was found to contain a dead body of a female. The dead body was
seized vide memo Ex.PW6/F-2 after its identification. IO prepared
site plan Ex.PW6/G of the place of recovery of dead body.
16. IO PW 24 has also deposed in detail the manner in which dead
body was got recovered by appellant pursuant to his disclosure
statement Ex.PW6/C. There is no discrepancy of material nature
about the place and manner of recovery of dead body of deceased.
The testimony of material witnesses in this regard is not shaken
in cross-examination. There are photographs of dead body on record
which are Ex. PW4/A collectively.
Crl.A. 979/2010 Page 15 of 33
17. Learned counsel for the appellant has contended that there were
siphons in the nala and as per the prosecution case the dead body was
recovered after travelling a distance of about 1.5 km. It is contended
that there were two siphons in between the places where the dead body
was alleged to have been thrown and the place from where it is
allegedly recovered. Learned counsel referred to photographs Ex.D-1
to D-8 to substantiate the same. The evidence of ASI Gopi Ram PW-8
and that of I.O. Inspector H.S.P. Singh PW-24 clearly shows that iron
grills were affixed with siphon and the same were broken. It has
clearly come in the evidence of recovery witnesses that on the way up
to 1.5 km in the nala, the iron grill of siphons were broken. Reading
the entire evidence of witnesses in this regard it is clarified that there
were iron siphons at some places which were broken and the dead
body travelled with the flow of water and it got entangled in the
garbage near siphons from where it was ultimately recovered. It is
also on record in the evidence of the witnesses that the appellant had
led police party following the flow of water in the nala and after
travelling about 1.5 km, the gunny bag was found.
18. The call location and call detail/call locations of mobile phone
of appellant Ex.PW-20/A and Ex.PW-20/B show his presence on 30th
Crl.A. 979/2010 Page 16 of 33
November, 2003, at 15.33 at Meera Bagh. The same also corroborates
the recovery of dead body at the instance of the appellant.
19. Constable Nagender Singh PW-10 has categorically deposed
that on 04.02.2004 he had joined the investigation of the case with
Inspector H.S.P. Singh and came to ganda nala, Nilothi. The
appellant and the co-accused were present there and at the instance of
the appellant, a dead body of a girl was recovered from a bag inside
the ganda nala. In his cross-examination, he has stated that he along
with S.I. Ravinder Singh, PW-6 and ASI Gopi Ram PW-8 got down in
the nala and the body was recovered from a place at a distance of 1½
km from the place pointed out by the appellant. He has also deposed
that the distance of 1½ km was covered by him by moving in the nala
along the flow of water.
20. There is nothing on record by which it can be said that the
evidence as to the recovery of dead body is not believable or that the
dead body is planted on the appellant as is alleged.
21. The recovery of dead body of Manpreet Kaur at the instance of
appellant shows that he had the knowledge regarding the body of the
deceased lying in a „ganda nala‟ at Chander Vihar in a gunny bag tied
with a rope. This knowledge as to the place of dead body and the
Crl.A. 979/2010 Page 17 of 33
manner in which it was kept was exclusive to the accused. The
appellant has not explained when examined u/s 313 Cr.P.C as to how
the dead body was lying at the place from where it was recovered.
The appellant has failed to explain as to how it came into his
possession. Under these circumstances, the same is a highly
incriminating evidence against him.
22. In Deepak Chandrakant Patil Vs. State of Maharashtra:
(2006) 10 SCC 151, the conviction under Section 302 IPC was
challenged. The Supreme Court upheld the conviction as the dead
body of deceased and the motor cycle of the deceased was recovered
at the instance of the accused. The relevant portion of the judgment is
as under:-
“xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxApart from being last seen with the deceased, there
is evidence to the effect that he pointed out the place
where the body of the deceased was lying which was
in the garden behind the house of A-1. The
motorcycle of the deceased was also recovered from
the same spot. The evidence is thus conclusive that
the appellant and the deceased travelled from the
house of the deceased to the point where he was
assaulted and killed. The objective findings also
prove that the appellant had brought the deceased
towards the house of A-1 and that in fact he had told
the deceased that he was required by A-1. Learned
counsel submitted that the statement made by the
appellant that he had a fight with the deceased and
that he could show the place where his body wasCrl.A. 979/2010 Page 18 of 33
lying, is not admissible as it was made in the presence
of a police constable. Assuming that the inculpatory
part of the statement may not be admissible in
evidence, the statement, so far as it relates to other
parts disclosed leading to recovery, is admissible. It is
also not as if with the aid of Section 106 of the Code
the appellant has been convicted because he was
unable to give an explanation regarding facts within
his exclusive knowledge. In this case, the appellant
had brought the deceased from his house and later on
pointed out the place where his dead body was found.
The evidence on record suggested that he may be
acting at the behest of A-1 but even if that is not
proved, the evidence as against the appellant is
abundant and conclusive enough to prove that he was
responsible for the death of the deceased.”
In Ningappa Yallappa Hosamani and Ors. Vs. State of
Karnataka and Ors.: (2009) 14 SCC 582 wherein there was recovery
of dead body pursuant to disclosure of appellant from the canal, the
Supreme Court has held as under:-
"9. xxxxx xxxxx xxxxx xxxxx xxxxx
xxxxx
As regards accused Nos. 1 and 2, since the dead body
of Namadev was recovered in furtherance of the
voluntary information furnished by them, the natural
presumption, in the absence of explanation by them is
that it was those two persons, who had murdered
Namadev and had buried the dead body.
In the aforesaid judgment, reference is also made to judgment of
State of Maharashtra v. Suresh : (2000) 1 SCC 471 wherein it is
observed as under:-
Crl.A. 979/2010 Page 19 of 33
“Three possibilities are there when an accused points
out the place where dead body or an incriminating
material was concealed without stating that it was
concealed by him. One is that he himself would have
concealed it. Second is that he would have seen
somebody else concealing it. And the third is that he
would have been told by another person that it was
concealed there. But if the accused declines to tell the
criminal court that his knowledge about the
concealment was on account of one of the last two
possibilities the criminal court can presume that it was
concealed by the accused himself. This is because the
accused is the only person who can offer the
explanation as to how else he came to know of such
concealment and if he chooses to refrain from telling
the court as to how else he came to know of it, the
presumption is a well-justified course to be adopted by
the criminal court that the concealment was made by
him. Such an interpretation is not inconsistent with
the principle embodied in Section 27 of the Evidence
Act.”
23. In State of Maharashtra Vs. Suresh: JT 1999(9)SC 513, the
Supreme Court has held as under:-
“24. One of the formidably incriminating circumstances
against the accused was that the dead body was
recovered as pointed out by the respondent. The
statement of the respondent which led to the recovery of
the dead body has been incorporated in Ext. 79 and the
admissible portion of it reads thus:
Her dead body is kept concealed in the field; I will take
it out and produce the same; come with me.
25. But unfortunately the Division Bench of the High
Court did not rely on the above circumstance on a veryCrl.A. 979/2010 Page 20 of 33
fragile reasoning. The first limb of that reasoning was
based on a mistake committed by PW-3 Sayyed Niyamat
in his evidence when he said that he saw the dead body
of the child on 23.12.1995. Much strain is not required in
holding that what PW-3 said should have been
understood as 24.12.1995. The second limb of the
reasoning is that two other possibilities could not have
been ruled out. Of which one is that respondent would
have seen someone else placing the dead body at that
spot, and the second is that respondent would have been
told by somebody else that the dead body was placed
there.
26. We too countenance three possibilities when an
accused points out the place where a dead body or an
incriminating material was concealed without stating
that it was conceded by himself. One is that he himself
would have concealed it. Second is that he would have
seen somebody else concealing it. And the third is that
he would have been told by another person that it was
concealed there. But if the accused declines to tell the
criminal court that his knowledge about the concealment
was on account of one of the last two possibilities the
criminal court can presume that it was concealed by the
accused himself. This is because accused is the only
person who can offer the explanation as to how else he
came to know of such concealment and if he chooses to
refrain from telling the court as to how else he came to
know of it, the presumption is a well justified course to
be adopted by the criminal court that the concealment
was made by himself. Such an interpretation is not
inconsistent with the principle embodied in Section 27 of
the Evidence Act.”
24. A Division Bench of this court in Prithipal Singh Vs. State
(Crl.A.No.75/2004), decided on 12th March, 2010, has held as under:-
Crl.A. 979/2010 Page 21 of 33
“37. Recoveries of objects and dead bodies lying
hidden in the soil at the instance of a person have
always been treated as highly incriminating evidence
for the reason save and except a person telling the
police its whereabouts, the police can never reach out
to the same. The same has been reiterated in the
decision of a Division Bench of this Court decided on
01.02.2010 in Crl.A. No. 385/2008 Dost. Mohd. and
Anr. v. State. Thus, we hold that Section 27 of the
Evidence Act stands attracted and makes admissible
the disclosure statement of the appellant pertaining to
the spot wherefrom the dead body of Hemant Kumar
was recovered. Further, the part of his statement
which gives the description of the dead body i.e. that
the same has stab wounds as also its condition i.e.
being stripped of the clothes is also admissible as the
dead body is a thing and the state of the thing is a
matter of fact.”
25. Recovery of dead bodies at the instance of the accused have
been held to be highly incriminating evidence as is held in the
decisions reported in AIR 1947 PC 67 Pulukuri Kottaya & Ors Vs.
Emperor; 1989 Crl.L.J(NOC) 200 (Gauhati) Chakidhar Paharia vs.
State of Assam; 1986 Crl.L.J 220 Parimal Banerjee vs State; AIR
1963 SC 1074 Ram Lochan Ahir vs. State of West Bengal as also in a
decision by a Division Bench of this court titled Dost Mohd. & Anr
vs. State Crl.A.No.385/2008, decided on 01st February, 2010.
26. Learned counsel for the appellant has contended that evidence
on record shows that the dead body was decomposed and was beyond
Crl.A. 979/2010 Page 22 of 33
recognition as such it can‟t be said that Avtarjeet Singh PW2 and
Narender Jeet Singh PW3 were in a position to identify her. It is
contended that Ld. Addl. Sessions Judge has wrongly taken into
consideration the said evidence.
27. The dead body is identified by Avtarjeet Singh PW-2 and Sh.
Narender Jeet Singh PW-3 in the presence of SI Ravinder Singh PW-6
and ASI Gopi Ram PW-8. Sh. Avtarjeet Singh, PW-2, the father of
the deceased has deposed that after receiving information from the
Crime Branch, he along with his brother (PW3) and another relative
went to Nillothi Village near the ganda nala. Both the accused
persons, i.e., the present appellant and the co-accused, were there in
the custody of Crime Branch and the dead body was recovered from
the ganda nala in a gunny bag. He has also deposed that the dead
body had the same clothes which Manpreet Kaur was wearing when
she had left the house for the last time. On the basis of clothes, he had
identified the body and has proved his signatures on identification
memo Ex. PW2/B. PW-3, Narenderjit Singh has deposed that on 4th
February, 2004 when they came to know about the recovery of dead
body, he along with his brother went at the place of recovery of dead
body, i.e., ganda nala. He identified the dead body vide memo Ex.
Crl.A. 979/2010 Page 23 of 33
PW 3/A. SI Ravinder Singh (PW-6), a witness to the identification of
the dead body, has also deposed that father of deceased PW-2 and his
brother PW-3 reached the spot and had identified the dead body vide
Ex.PW2/B and Ex.PW3/A respectively. Similarly, ASI Gopi Ram
PW8, who is also a witness to the identification of dead body has also
supported the deposition of identification by PW2 and PW3.
SI Ravinder Singh PW-6 and Inspector H.S.P. Singh PW-24 in
cross-examination have deposed that body was in a decomposed state.
But reading the evidence of PW-2 & PW-3 about identification
of dead body of deceased it can‟t be said that there is a doubt about
identification as is alleged. Further, Dr.V.K.Jha, PW-18 has deposed
that face of dead body was not decomposed and was identifiable.
Under these circumstances, it cannot be said that identification of dead
body is doubtful. Learned counsel for appellant has also pointed out
variation about the description of clothes as stated in missing report
Ex. PX-1, FIR Ex. PW-1/A, as compared to deposition of Avtarjeet
Singh PW2 in court. It is contended that in missing report Ex.PX-1
and FIR Ex. PW-1/A, complainant has stated that when deceased left
home she was wearing blue and yellow colour shirt and blue salwar,
whereas in deposition before the court he had stated that she
Crl.A. 979/2010 Page 24 of 33
was wearing a blue suit with yellow stripes on the shirt. Learned
counsel for the appellant has contended that in FIR Ex. PW-1/A as
well as in missing report Ex. PX1, the locket, ear rings and hair clip
were not mentioned, whereas the evidence on record shows dead body
had these articles. It is not necessary to give every minute details by a
person whose daughter is missing. The father of deceased PW2 had
given sufficient description of the missing girl in the missing report
i.e. Ex.PX1 and FIR Ex.PW-1/A. Considering the entire evidence on
record the above variations pointed out don‟t make the identification
doubtful.
Further the autopsy report Ex.PW18/B mentions the age of the
deceased as seventeen & half years and time since death is recorded as
two and half months which coincides closely with the date and time as
recorded in the missing report Ex.PX-1 and as such corroborates the
identification.
28. Dr. V.K. Jha, who has conducted the post mortem vide report
Ex.PW18/3 has deposed that in view of the fact that the dead body
was placed in gunny bag tied with rope, element of homicide was
present. The CFSL report Ex.PW16/A shows presence of “aluminium
phosphide” in the viscera and blood sample of deceased. Further,
Crl.A. 979/2010 Page 25 of 33
there is no suggestion on behalf of the defence to the PWs that
Manpreet Kaur committed suicide.
29. The other contention of learned counsel for appellant is that the
alleged recovery of dibbi Ex.P6 containing poisonous substance
“aluminium phosphate” is doubtful.
30. As per evidence on record, the accused got recovered one dibbi
Ex. P6 on which “aluminium phosphate” was written after taking it
out from the waste material which was seized by IO PW-24 vide
memo Ex.PW-6/1 in the presence of SI Ravinder Singh PW-6 and ASI
Gopi Ram PW-8 on 5.2.2004. It has come in the evidence that during
the course of investigation, the dibbi Ex. P6 was sent to CFSL. As per
seizure memo Ex. PW6/I, it is stated that on the dibbi, “Aluminium
phosphate” was printed in English and some more words in Hindi and
English were printed which were not legible.
As per CFSL report Ex. PW16/A, the description of the said
parcel is as under:-
“Grey coloured powdery substance kept in a metallic
tube labelled as “FUMIGANT-INSECTICIDE
ALUMINIUM PHOSPHIDE 56% Quick phos.”
Crl.A. 979/2010 Page 26 of 33
There is a clear discrepancy in the dibbi Ex. P6 which is alleged
to have seized vide memo Ex. PW6/I and the parcel-2 containing the
alleged dibbi which was sent to CFSL.
In these circumstances, the alleged recovery of dibbi Ex. P6 is
not believable. Further, SI Ravinder Singh PW6 has deposed that
inside the dibbi Ex. P6 there were some grey coloured tablets and
some powder like substance and ASI Gopi Ram PW8 who is another
witness to the alleged recovery has stated that only some intact and
some broken tablets were there in dibbi Ex. P6. He is not talking of
any powder. In cross-examination, he also could not state whether the
number of tablets were 10, 20, 50, 100 or more. Similar is the answer
of the IO, PW24. In view of the above discussion, the recovery of
dibbi Ex. P6 containing the poisonous substance “Aluminium
phosphate” is doubtful. The finding of the learned ASJ in this regard
is rejected and this piece of evidence cannot be taken into
consideration.
31. Even the alleged recovery of wrist watch Ex. P-1 is also
doubtful. The disclosure statement Ex.PW6/C is dated 04.02.2004.
The alleged recovery of wrist watch Ex. P-1 is dated 06.02.2004. PW-
Crl.A. 979/2010 Page 27 of 33
8 ASI Gopi Ram has stated that appellant had got recovered from the
bushes inside the Central Park, Paschim Vihar one ladies wrist watch
“Time Star”. It has also come in the evidence that the Central Park,
Paschim Vihar is for the use of general public. The alleged incident is
of 30.11.2003. The alleged recovery is of 6.2.2004, that too from a
park which is generally used by the public. The recovery, in these
circumstances, becomes doubtful. Even this piece of evidence cannot
be taken into consideration.
32. Learned counsel for the appellant has contended that call details
Ex.PW 20/B relied upon by the learned Addl. Sessions Judge should
not have been taken into consideration as circumstantial evidence
against appellant. It is contended that same have not been proved in
accordance with law. Further the same have not been put to the
appellant in his statement u/s 313 Cr.P.C and at no point of time, he
was given an opportunity to explain the said details.
33. On the other hand, learned APP has contended that there is
complete compliance of section 65(B) of the Evidence Act and the
same have been proved in accordance with law and were put to
appellant in his statement u/s 313 Cr.P.C.
Crl.A. 979/2010 Page 28 of 33
34. We have examined the contentions raised in this regard. Shri
Jyotish, Executive of Essar PW-20, who was produced by the
prosecution, has deposed that he had brought cell ID chart of Essar
showing the side ID and site name and computerized generated record
certified to be true which is Ex.PW 20/A. He has proved on record the
call detail record Ex.PW 20/B of mobile no.9811656501 which was
of appellant from 1.11.2003 to 29.1.2004. He has also proved on
record Ex.PW 20/C to show that the aforesaid mobile was in the
name of Harvinder Singh. He has also deposed that the record is
computer generated and certified the same as correct. There is no
suggestion to the said witness that the same was a manipulated record.
Under these circumstances, the correctness of the aforesaid document
cannot be doubted.
35. Perusal of record shows that even the call details of the said
mobile number Ex.PW 20/B and other relevant material had been put
to the appellant in his statement u/s 313 Cr.P.C wherein he had
admitted the aforesaid mobile number belongs to him and had also
admitted that landline no.2519918 having been installed at the
residence of deceased Manpreet Kaur. He has further stated that the
said mobile phone was used in his factory at the ground floor as well
Crl.A. 979/2010 Page 29 of 33
as on the first floor where he was living. His further stand was that his
wife was having intimacy with the mother of the deceased and she
used to talk from his mobile phone to the aforesaid landline.
However, the call details Ex.PW 20/B shows that the mobile phone
was not only being used from the area of Tri Nagar but was being used
from different places of Delhi in order to make calls at the landline
number of PW-2. The Call details Ex.PW 20/B shows that one day
prior to incident, three calls were made from the mobile phone of
accused to the landline of deceased. Even on the day of incident
shows his presence near the college of deceased and the place where
dead body was recovered.
36. Insofar as the transfer of the case to Anti Homicide Cell is
concerned, the explanation of prosecution that when no clue about
missing girl was coming forward, the father of deceased PW-2 made a
representation to the higher officers of police for transfer of
investigation to Crime Branch. It is also submitted that the DCP of the
area concerned on 20th January, 2004 had also requested the Incharge
Anti Kidnapping Cell, Crime Branch to assist the local police of
I.P.Estate in tracing the missing girl. Despite that, the girl was not
traced. Thereafter, Department in its wisdom marked the case to Anti
Crl.A. 979/2010 Page 30 of 33
Homicide Cell of the Crime Branch which has requisite expertise.
Under these circumstances, it cannot be said that the Crime Branch
has falsely implicated the accused.
37. It is an admitted position that the deceased‟s mother and mother
of wife of appellant were sisters as such complainant‟s daughter
Manpreet Kaur was related to accused Harvinder Singh as his sister in
law. Further, it has also come on record in the evidence of PW-2 that
accused Harvinder Singh had been visiting his house in his absence
and he had warned him not to visit his house in his absence. Further
the conduct of the accused that on 29th November, 2003, he called
thrice at the residence of deceased, is also an indication of his
involvement.
It is an admitted position that deceased was related to accused
being his sister-in-law (Sali). The call details Ex.PW-20/B shows that
he was in constant touch with the landline phone of the deceased.
There are various calls made from the period from 01.11.2003 to
29.01.2004. One day prior to her going missing he had called thrice
on the landline of deceased. The call location of mobile phone of
appellant on 30.11.2003 at 12.37 shows the presence of appellant at
Crl.A. 979/2010 Page 31 of 33
Ranjit Nagar flyover which is near Mata Sundri College from where
the girl went missing and the call at 1533 hours on the said date
demonstrates the location at Meera Bagh where appellant pointed out
the place where the dead body was put in a gunny bag.
The appellant was apprehended on 04.02.2004 and had made a
disclosure statement Ex. PW-6/C and got recovered a dead body of
deceased Manpreet Kaur from the ganda nala which was kept in a
gunny bag and tied with a rope. All these facts were within the special
knowledge of the appellant. No explanation has been given by him.
Identity of the dead body is also fully established. As stated above in
the judgments referred above, recovery of a dead body lying
concealed is a piece of highly incriminating evidence against the
accused and the recovery has been fully established beyond doubt and
the same incriminates the appellant at whose instance the recovery has
been effected. Learned ASJ has also noted that it has come in the
evidence of PW2 that appellant used to visit the house of deceased in
the absence of complainant and he had warned the accused not to visit
the house in his absence. The cumulative effect of the above
circumstantial evidence led by the prosecution proves the guilt of the
Crl.A. 979/2010 Page 32 of 33
appellant. These circumstances are not capable of explaining any
other hypothesis except the guilt of the accused.
Even if the evidence led by the prosecution does not establish
the recovery of dibbi Ex. P6 and wrist watch Ex.P1 at the instance of
the appellant, the same does not demolish the case of the prosecution
in view of the other circumstances which are proved by the
prosecution against the accused and which form a complete chain as
discussed above.
38. In view of the above discussion, we find no merit in the appeal
and the same is dismissed.
VEENA BIRBAL, J
BADAR DURREZ AHMED, J
June 2, 2011
ssb/kks
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