* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.A. No.836/2001
% Date of Decision: 25.03.2011
Shakuntala .... Appellants
Through Ms. Ritu Gauba, Advocate
Versus
State .... Respondent
Through Mr. Lovkesh Sawhney, APP
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE S.L.BHAYANA
1. Whether reporters of Local papers may YES
be allowed to see the judgment?
2. To be referred to the reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
ANIL KUMAR, J.
*
1. The appellant, Shakuntala, has challenged her conviction under
Section 302 r/w Section 34 and Section 201 r/w Section-34 of IPC by
judgment dated 11th September, 2001 and her sentence to rigorous
imprisonment for life for the offence under Section 302 r/w Section 34
of IPC and a fine of Rs. 5,000/- and in default, to further undergo
simple imprisonment for six months and her sentence to rigorous
imprisonment for five years and a fine of Rs.1000/- and in default to
suffer rigorous imprisonment for a period of one month for the offence
under Section 201 r/w Section 34 of IPC.
Crl A. 836 of 2001 Page 1 of 68
2. By the same judgment dated 11th September, 2001 in Sessions
Case No. 125/2001 titled as State vs. Shakuntala, wife of Pritam Singh
and Israr @ Bachan @ Bhura arising out of FIR No. 213/1996, PS
Seelampur under Section 302/34 and 201/34 IPC, accused Israr was
acquitted of offences under Section 302, r/w Section 34 of IPC and
Section 201 r/w Section 34 of IPC on the ground that no efforts were
made during the investigation of the supplementary challan to link
accused Israr with the injuries which he had sustained when the
offence was allegedly committed by him and there was only the
disclosure statement of accused Shakuntala who had named accused
Israr which was not sufficient to prove the guilt of the accused. Also the
disclosure statement of Shakuntala had not been corroborated by any
independent evidence in respect of accused Israr, nor did accused Israr
himself make any disclosure statement. Furthermore his name did not
figure in the alleged photocopy of the complaint Ex PY which was
allegedly made by Joginder, the deceased and therefore, the prosecution
had failed to link accused Israr with the commission of offence with
which he was charged and thus the said accused was acquitted.
3. The prosecution case against the appellant Shakuntala was that
the deceased Joginder Singh had married the appellant in a temple.
According to the allegations of the prosecution, House No.- U-12, Gali
No.-1, Arvind Mohalla, Ghonda, Delhi was purchased by Sh. Joginder
Singh in the name of the appellant, but on account of the strained
Crl A. 836 of 2001 Page 2 of 68
relations, he wanted to sell it off and was compelling her to dispose of
the same and give 50% of the sale consideration to him to which the
appellant was not agreeable.
4. It was alleged that in 1992, Joginder Singh, alleged husband of
the appellant, was arrested in a TADA case by the police of Police
Station Sarai Rohilla and he remained in jail for almost three years.
After his release, in July, 1995, when he came from the jail, he doubted
the fidelity of the appellant and had started quarrelling with her. The
appellant had even got a case FIR No. 75/96 registered against Joginder
Singh under Section 506 of IPC at PS Seelampur on 7th February, 1996,
for the threats made by the deceased. It was also alleged that the
appellant had developed illicit relations with Nasiruddin and when this
fact came to the notice of Joginder Singh, Nasiruddin had left the place.
It was further alleged that one room was rented by the appellant to co-
accused Israr @ Bachan @ Bhoora @ Rashid and he had been living for
three years in the house of the appellant. According to the prosecution,
on 18th April, 1996 information was received through a wireless
message by Inspector Ramkishan that a dead body was lying at second
Pushta Approach, old Usman Pur Village, near the pond. On reaching
the place, the dead body of a man aged 27 years with a slit throat and
scratches on the body, bound in a gunny bag was found. The dead
body was wearing sport shoes and a black pant. The throat was
wrapped with an `Angochha‟ (Towel) and a maxi cloth around his neck
Crl A. 836 of 2001 Page 3 of 68
and the gunny bag was wrapped with an electrical wire. The case
under Section 302/201 of IPC was registered. On that date, the dead
body was not unidentified, therefore, it was sent to the mortuary for
preservation and for identification.
5. On 19th April, 1996, the next day, Sh. Rakesh Kumar and Rajesh
Kumar, brothers of the deceased, identified the body. The prosecution
had contended that after identification of the body on 19th April, 1996,
Rakesh Kumar and Rajesh Kumar, brothers of the deceased, produced
a photocopy of letter dated 25th November, 1995, Ex PY allegedly written
by the deceased to the SHO stipulating that in case, the deceased does
not return to his house for 4-5 days, then it should be presumed that
Ms. Shakuntala, appellant, her mother Brahmi Devi, her sons Joshi
and Bunty, Mahesh Kumar Sharma and Nasiruddin be held
responsible. The original of the said letter was not recovered by the
prosecution nor placed on record. The alleged handwriting of the
deceased on the said letter had not been proved. On the basis of
testimonies of Pw-8 and Pw-11 it could not be held that the photocopy
of the alleged letter was in the handwriting of the deceased.
6. The prosecution also alleged that on 17th April, 1996, deceased
had told his brother that he was asked by Shakuntala, appellant to
come to her house, as a buyer was expected to come on that date. The
deceased, therefore, along with his brother, allegedly went to the house
of the appellant. Brother of the deceased, Rakesh Kumar, stayed for
Crl A. 836 of 2001 Page 4 of 68
10-15 mins and then left from there, leaving behind his brother at the
said place. Till 19th April, 1996, deceased did not returned to the house
therefore the brother and father of the deceased made inquiries. Later
on they identified his body in the mortuary along with the police officer
SI M.A. Khan.
7. According to the prosecution, the appellant was arrested on 23rd
April, 1996, at platform No. 38, Inter State Bus Terminus, Kashmiri
Gate and was sent to judicial custody and was charged for murdering
Joginder Singh along with Israr under Section 302/201 of IPC r/w
Section 34 of IPC on 5th April, 1997. Accused Israr was arrested later
on and a supplementary charge sheet was filed. On 5th April, 1997,
charge was framed against the appellant that on or before 18th April,
1996 near a pond near Approach Road, 2nd Pushtah, Old Village,
Usman Pur, she along with co-accused Israr @ Bachchan, Jaffar and
Ashok (proclaimed offenders) committed the murder of Joginder Singh
and also caused the evidence of the commission of offence to disappear
with the intention of saving the offender from legal punishment and
thus also committed the offence punishable under Section 201 r/w
Section 34 of IPC.
8. After arrest of Israr, the charge against him was framed on 8th
March, 2000 stipulating that he with appellant and Zaffar and Ashok,
committed the murder of Joginder Singh @ Laloo and therefore
committed offence under Section 302 of IPC r/w Section 34 and with
Crl A. 836 of 2001 Page 5 of 68
the common intention caused the evidence of commission of offence to
disappear with the intention to save the offenders from legal
punishment, thereby committing an offence punishable under Section
201 r/w Section 34 of IPC.
9. The appellant and the co-accused Israr pleaded not guilty and
claimed trial and during the trial, the prosecution produced 16
witnesses and on 9th August, 1999 examined the accused under Section
313 of the Crl. Procedure Code.
10. The Trial Court held that the deceased was last seen with the
appellant, as his brother PW-11 had left him at the residence of the
appellant. Reliance was also placed on the fact that House No. U-12,
Gali No.-1, Arvind Mohalla, Ghonda was opened by the appellant with
her key, which was in her possession at the time when she was arrested
and articles were recovered at her instance from her house pursuant to
the disclosure statement made by her, i.e., a portion of maxi and a wire.
The Trial Court also relied on the CFSL report Ex. PW-14/F G & H
holding that it corroborated the case of the prosecution and linked the
articles recovered from the house of the accused Shakuntala with the
articles recovered from the dead body, stipulating that the human blood
of „B‟ Group was detected on these articles which was the blood of the
deceased and also as the prosecution was able to prove the motive of
the accused for perpetration of crime against the deceased, in order to
grab the property and to get rid of him, therefore, the crime of the
Crl A. 836 of 2001 Page 6 of 68
appellant to murder her husband in furtherance of common intention
with other persons, who were not yet arrested was made out. It was also
held that she also caused the disappearance of the evidence of
commission of murder and threw the dead body with the intention of
screening the offenders from legal punishment, therefore, she was also
convicted for offences under Section 302/201 r/w Section 34 of IPC.
11. Ms. Ritu Gauba, learned counsel for the appellant has contended
that the prosecution has failed to establish its case and the inferences
are drawn on the basis of assumptions and surmises. The case of the
prosecution is based on the fact that the deceased got married to the
appellant however, neither the marriage has been proved nor has it
been established by any witness as to when the marriage took place
between the appellant and the deceased, who attended the marriage
ceremonies who witnessed the marriage, who performed the rites for
marriage and whether they ever co-habited as husband and wife.
According to her, it has also not been proved that the disputed property
was purchased by the deceased in his name and later on transferred in
the name of the appellant. She has further pointed out the change in
the prosecution version. Initially it was alleged that the property was
purchased by the father of the deceased from his money in the name of
his son, deceased Joginder, which later on transferred in the name of
the appellant, while later on it was contended that the property was
infact purchased by the deceased himself. She submitted that no
Crl A. 836 of 2001 Page 7 of 68
documents have been produced or proved to show that the property was
purchased initially in the name of Joginder Singh, deceased, by his
father. Father of the deceased has not been examined nor has it been
established that the money was paid by the father of the deceased for
the purchase of said property raised from various sources nor such
sources have been disclosed, which property was later on allegedly
transferred by the deceased in the appellant‟s name. It is also apparent
that no documents have been produced and proved to show as to when
the property was transferred by the seller in the name of the deceased
and when the property was transferred in the name of appellant.
Learned counsel contended that the bald oral allegations by the
brothers of the deceased does not establish anything nor on the basis of
such testimonies the appellant can be inculpated.
12. Assumptions that the property was purchased by the father of
Joginder in the name of his son, which illegally got transferred by the
appellant in her name and since she allegedly developed illicit relations
with other persons, so, the deceased wanted to sell the said property
and share 50% of the sale consideration, which prompted the appellant
to kill him is just a theory merely based on surmises and none of the
allegations have been established and can be inferred even on the basis
of preponderance of probabilities, whereas the prosecution had to prove
it beyond reasonable doubt.
Crl A. 836 of 2001 Page 8 of 68
13. According to learned counsel, the husband of the appellant is
alive and in the circumstances, the allegations that she was married to
deceased Joginder Singh, cannot be inferred especially in the absence of
any evidence about the marriage between the deceased and the
appellant. In any case, none of the prosecution witnesses have proved
that the deceased and the appellant lived together as husband and wife.
The entire prosecution version is based on assumptions. Even if it is
presumed that the deceased and the appellant cohabited it would not
mean that they got married and were husband and wife. There is no
evidence at all that the property was ever in the name of deceased or
was purchased from the consideration paid by the father of the
deceased by raising it from various sources. In the circumstances the
entire prosecution version has remained unproved and in the absence
of all these essential and vital link it cannot be held that the
prosecution has established the culpability of the appellant beyond
reasonable doubt.
14. On behalf of the appellant, it is also contended that the alleged
photocopy of the letter dated 25th November, 1995 has not been proved
and cannot be relied on, as it is merely a photocopy and there is no
evidence that it was in the hand writing of the deceased or that a copy
of this letter was also delivered to the police authorities.
15. The learned counsel emphasized that the appellant has been
shown as the wife of Pritam Singh in the challan submitted under
Crl A. 836 of 2001 Page 9 of 68
Section 173 of the Crl. Procedure Code and even while framing the
charges against the appellant. None of the witnesses including the
brothers of the deceased have either deposed as to when and how the
appellant got married to Joginder Singh or what is the basis of deposing
that they got married, nor was any effort been made by the prosecution
to establish that the appellant had been married to the deceased
Joginder Singh. None of the witnesses could tell the location of the
temple or the person/priest, who got them married or that they got
married in their presence nor were any witness produced who had
witnessed the alleged solemnization of the marriage. In the
circumstances, the allegation of marriage between the appellant and the
deceased is a mere speculation and is suspicious and the conviction of
the appellant could not be based on mere suspicion.
16. The prosecution also failed to prove the alleged divorce between
the appellant and her husband Pritam Singh and in the circumstances,
there is no basis for alleging that the appellant got married to Joginder
Singh. Even after alleged marriage between the deceased and the
appellant, children were born to the appellant who were not fathered by
the deceased as the brothers of the deceased in their testimonies had
admitted that there were no children from the alleged marriage between
the appellant and the deceased.
17. The prosecution had produced a photocopy of the ration card Ex
PW 5/E and a warranty card of a godrej refrigerator, Ex PX which were
Crl A. 836 of 2001 Page 10 of 68
produced and given to the police authorities by the brother of the
deceased during investigation, contending that it allegedly proved that
the deceased and appellant were co-habiting as husband and wife.
Refuting the ration card, it is contended that it is only a photocopy
which should not be considered, as the prosecution has failed to prove
the photocopy from the record of the ration card office. Photocopy of the
ration card could not be considered which is a secondary evidence and
no grounds had been made out for leading and accepting the secondary
evidence in accordance with the provision of Indian Evidence Act. The
alleged ration card was allegedly issued on 17th November, 1992 and
bears the address 528/5B, Gali No. 6, Vishwas Nagar, Delhi which is
not the address of Rajesh Kumar, Rakesh Kumar and Puran Chand,
brothers and father of the deceased nor it is the address of appellant
nor it is the address at which the deceased and the appellant allegedly
lived as tenant. The testimonies of Rakesh Kumar, PW-11 that the
deceased and the appellant had shifted to a house in Bhimgali in
Vishwas Nagar as a tenant and started living as husband and wife has
also not been corroborated as no evidence has been produced. Neither
the owner of the house where the appellant and the deceased were
living as husband and wife as tenant, has been examined nor any other
witness has been examined from the said property or the vicinity to
prove that they were living as husband and wife or that the appellant
lived in Bhimgali in Vishwas Nagar. The learned counsel has also
pointed out the contradictions in the testimonies of the witnesses
Crl A. 836 of 2001 Page 11 of 68
inasmuch as the alleged ration card was allegedly issued on 17th
November, 1992 at the address bearing No. 528/5B, Gali No. 6,
Vishwas Nagar, Delhi whereas PW-11 had stated that they were living in
their own house, which was purchased in 1991, i.e., House No. U-12,
Arvind Mohalla, Gali No. 1, Ghonda, Delhi, the consideration of which
was allegedly paid by the father of the deceased. Another version of the
said witness was that the appellant and the deceased lived as husband
and wife in their house at 518/1 Karkari Road, Vishwas Nagar which
version has also not been established by the prosecution. Bald
statement of the deceased that the deceased got married to the
appellant and they lived as husband and wife cannot be accepted
without something more as the husband of the appellant is living and
there had not been divorce between them rather appellant had children
from her husband even after alleged marriage between appellant and
the deceased.
18. Refuting the ration card, it is also contended that the photocopy
does not bear the photograph of the head of the family nor does it bear
the name, father‟s name, age and other particulars of the head of the
family and in the circumstances, the photocopy is a fabricated
document and could not be relied on. It was also contended that the
ration card does not even have the printed/embossed ration card
number. It was also contended that it has not been explained as to how
the ration card was got prepared by deceased as he was under
Crl A. 836 of 2001 Page 12 of 68
detention in TADA case in 1992. Why names of all the children of the
appellant have not been included and only one of the child has been
included has not been explained especially in view of the fact that name
of one of her children from her husband is included in the photocopy of
the ration card.
19. The learned counsel also refuted the warranty of the refrigerator
which, according to her, has not been proved and in any case does not
establish the marriage between the appellant and the deceased or that
they were living as husband and wife or that they were living together. It
is further contended that the alleged refrigerator was not recovered from
the house of the appellant and that the alleged warranty card does not
bear the signature of the purchaser. On the basis of alleged warranty
card it also cannot be established that the deceased had any rights in
the property nor the warranty card can be construed as a document of
title.
20. The learned counsel Ms. Gauba has also contended that the
allegation regarding arrest of the appellant from the bus terminus is
concocted and false and highly improbable. According to her, no
independent witnesses were recorded regarding her arrest, though the
bus terminus must have been full of other passengers. She has also
pointed out and doubted the prosecution version as to how the accused
could have been arrested without any photograph from a crowded place,
Crl A. 836 of 2001 Page 13 of 68
where many people were present and as to how and who had identified
her.
21. Even according to the case of the prosecution at the time of her
arrest, she did not have any bag or luggage or bus ticket or enough
money to abscond from the city or any other documents in her
possession, which makes the version of the prosecution highly
unreliable that she was trying to flee to Bareli. It has also been pointed
out that the alleged search of the appellant was carried out at Platform
No. 38 of ISBT allegedly before the lady officer ASI Veena Sharma.
However, ASI Veena Sharma, PW-13 stated that she was only a duty
officer, who recorded the FIR on receipt of Rukka of PS Seelampur
through Constable Sanjeev Kumar and after registration of the case
returned the Rukka with the police file to the SHO. She has, therefore,
not deposed about conducting the search of the appellant or recovery of
any articles. According to the learned counsel, this completely falsifies
the version of the prosecution.
22. The learned counsel has also pointed out about the keys, which
were allegedly recovered at the time of her arrest from which the house
was opened. However, ASI Veena Sharma is silent about this aspect
rather she has not deposed that she had searched the accused and had
recovered the keys from her. In any case recovery of keys of her own
house from the appellant does not inculpate her in any manner.
Crl A. 836 of 2001 Page 14 of 68
23. According to the learned counsel even on the basis of testimonies
of the prosecution, the brother of the deceased had last seen him with
appellant when he allegedly left him at the residence of the appellant on
17th April, 1996. The testimony of the brother of the deceased is
unreliable and so even the version that he had dropped him at the
residence of the appellant is also unreliable. According to counsel for
the appellant the last seen evidence is not reliable as there were
disputes between the deceased and his brother which had led to a fight
between them, for which reason the father had stood surety. In the
circumstances on the basis of testimony of Rakesh Kumar (PW11) it
cannot be held that deceased was last seen with the appellant at about
12.00 PM on 17.4.1996. In any case it is contended that in absence of
any other links in the chain of circumstantial evidence, it is not possible
to convict the appellant solely on the basis of the last seen evidence and
reliance was placed on Jaswant Singh Vs State of Punjab, (2005) 12
SCC 438.
24. The learned counsel for the appellant has relied on AIR 2010 SC
3292, Main Pal v.State of Haryana to contend that error in framing of
the charge which could mislead the accused and results in failure of
justice would vitiate the trial.
25. Reliance has also been placed on 2010 (1) JCC (Narcotics) 28,
Ajmer Singh v. State of Haryana to contend that on the principle of
parity as another accused Israr on the same evidence has been
Crl A. 836 of 2001 Page 15 of 68
acquitted and as the case of the appellant is similar in that respect thus
the benefit extended to one accused should have been extended to the
appellant as well.
26. To buttress the point that it was for the prosecution to have
established with the documentary evidence that the property House
No.U-12, Gali No.12, Arvind Mohalla, Khonda was purchased by the
father of the deceased from the consideration paid by him in the name
of his son Joginder Singh, deceased, reliance has been placed on AIR
2008 SC 1541Thiruvengada Pillai v. Navaneethammal and Anr. In this
case it was held that the party who propounds the document will have
to prove it. The plaintiff had come to the Court alleging that the first
defendant had executed an agreement to sell in favour of plaintiff which
was denied by the defendant. It was held that the burden was on the
plaintiff to prove that the defendant had executed the agreement and it
was not for the defendant to prove the negative. Reliance has been
placed on (2007) 2 SCC (Cri.) 122, Subhash Harnarayanji Laddha v.
State of Maharashtra to contend that if the relevant documents are not
produced or the documents produced are not proved, the contents
thereof would be wholly inadmissible in evidence. In this case the
prosecution had not offered any explanation whatsoever as to why the
original agreement to sell was not produced and only a Xerox copy of
agreement to sell was taken from the Collectorate. Even as to at whose
instance the Xerox copy was filed with the Collector of the district had
Crl A. 836 of 2001 Page 16 of 68
not been established and in the circumstances the benefit of doubt was
given to the accused and the Supreme Court had allowed the appeals
and the conviction and sentence of the accused were set aside.
27. Reliance has also been placed on AIR 2007 SC 1721,
Smt.J.Yashoda v. K.Shobha Rani holding that copy of a document can
be received as evidence under the head of secondary evidence only
when the copies made from or compared with the original are certified
copies or such other documents as enumerated in Section 63 of the
Indian Evidence Act. It was further held that secondary evidence as a
general rule is admissible only in the absence of primary evidence. If the
original itself is found to be inadmissible through failure of the party,
who fails to prove it to be valid, the same party is not entitled to
introduce secondary evidence of its contents. Secondary evidence of the
contents of a document cannot be admitted without non production of
the original being first accounted for in such a manner as to bring it
within one or other condition as provided for in this section. Reliance
has also been placed on AIR 1999 Delhi 280, Ms.Arati Bhargava Vs.
Shri Kavi Kumar Bhargava where it was held that genuineness of the
photocopies cannot be guaranteed and unless there is evidence that
someone had compared the photocopies with the original or had
obtained the photocopies from the original, photocopies would be
inadmissible in evidence in absence of the original. Regarding
inadmissibility of photocopies reliance has also been placed on (2001)
Crl A. 836 of 2001 Page 17 of 68
SCC (Cri) 1501, United India Insurance Co. Ltd v. Anbari and Ors
where it was held that production of the photocopy of driving license
was not sufficient to prove that the driver had a valid license when it
was challenged and hence its genuineness was not admitted.
28. To substantiate her point that after the evidence was concluded
by the prosecution and even the statement of the appellant was
recorded along with other the co-accused under Section 313 of the
Criminal Procedure Code, the charge was modified substantially which
had caused prejudice to the appellant, reliance has been placed on AIR
2008 SC 3069, Dumpala Chandra Reddy v. Nimakayala Balireddy and
Ors. Relying on Dalbir Singh v. State of U.P, (2004) 5 SCC 334 the
learned counsel for the appellant has contended that having regard to
Section 464 of the Criminal Procedure Code conviction would be
possible if (i) the accused was aware of the basic ingredients of that
offence; (ii) the main facts sought to be established against him were
explained to him clearly and (iii) he got a fair chance to defend himself.
It was held that in view of Section 464 of Criminal Procedure Code, it is
possible for the appellate or revisional Court to convict the accused for
an offence for which no charge was framed unless the Court is of the
opinion that a failure of justice would in fact occasion. In order to judge
whether a failure of justice has been occasioned, it will be relevant to
examine whether the accused was aware of the basic ingredients of the
offence for which he is being convicted and whether the main facts
Crl A. 836 of 2001 Page 18 of 68
sought to be established against him were explained to him clearly and
whether he got a fair chance to defend himself.
29. According to the learned counsel the charge framed against the
appellant was that on 18th April, 1996 she along with other co-accused
persons committed the murder of Joginder Singh @ Lallu near pond,
near approach road, second pushta, old village Usmanpur. After the
entire trial was concluded the charge was modified and it was alleged
that she committed murder on 17th April, 2006 at noon time at House
No.U-12, Gali No.1 Arvind Mohalla, Khonda. After the charge was
completely modified regarding the time and place where it was
committed the new circumstance was not even put to the appellant and
in the circumstances it is apparent that the appellant could not give
any explanation and consequently she had been extremely prejudiced.
30. To counter the plea of the prosecution that for modification of the
charge the consent of the appellant and her counsel was taken reliance
was placed on AIR 1956 SC 116, Willie (William) Slaney Vs. The State of
Madhya Pradesh to contend that no serious defect in the mode of
conducting a criminal trial can be justified or cured by the consent of
the advocate of the accused. In this case it was also held that in
adjudging the question of prejudice, the fact that the absence of a
charge, or a substantial mistake in it, is a serious lacuna will naturally
operate to the benefit of the accused and if there is any reasonable and
substantial doubt about whether he was, or was reasonably likely to
Crl A. 836 of 2001 Page 19 of 68
have been misled in the circumstances of any particular case, he is as
much entitled to the benefit of it here as elsewhere; but if, on a careful
consideration of all the facts, prejudice, or a reasonable and substantial
likelihood of it, is not disclosed the conviction must stand.
31. Regarding non examination of the appellant after the charge was
modified by completely changing the time and place where the alleged
murder was allegedly committed by her under Section 313 of the
Criminal Procedure Code reliance was placed on Ranvir Yadav v. State
of Bihar, (2009) 3 SCC (Cri) 92 holding that examination of an accused
under Section 313 even in a trial involving the most gruesome and
horrifying mass murder is not an empty formality. In this case neither
any incriminating material nor any accusations were specifically put to
the accused in his examination under Section 313. The Supreme Court
while noting with concern, regretted the lapse on the part of the trial
Court in not indicating incriminating material to the accused had held
that in such circumstances the impugned judgment convicting accused
is liable to be set aside. Similarly in (2008) 1 SCC (Cri) 371, Ajay Singh
v. State of Maharashtra it was held that the object of examination under
Section 313 of Criminal Procedure Code is to give the accused an
opportunity to explain the case made against him. This statement can
be taken into consideration in judging his innocence or guilt. It was
further held that the questions must be put in such a way so as to
enable the accused to know what he has to explain, what are the
Crl A. 836 of 2001 Page 20 of 68
circumstances which are against him for which the explanation is
needed. A conviction based on the accused‟s failure to explain, what he
was never asked to explain is bad in law. The whole object of enacting
Section 313 of Criminal Procedure Code was that the attention of the
accused should be drawn to the specific points in the charge and in the
evidence on which the prosecution claims that the case is made out
against the accused so that he may be able to give such explanation as
he desires to give. In this case no question was put to the accused
regarding the finding of kerosene on the accused‟s dress in his
examination under Section 313 of the Criminal Procedure Code and in
the circumstances it was held that the prosecution had failed to
establish the charge under Section 302 against the accused.
32. The learned counsel, Ms.Gauba has also relied on AIR 1989 SC
129, State of West Bengal v. Laisal Haque and Anr and AIR 1984 SC
1622, Sharad Birdhichand Sarda v. State of Maharashtra to contend
that the statements of the brothers of the deceased in the present facts
and circumstances could not be relied on as they have exaggerated and
added facts and their testimony should be examined with great care
and caution. Reliance has also been placed on this precedent regarding
the circumstances not put to the accused under Section 313 of the
Criminal Procedure Code as after the amendment of the charge after
conclusion of the trial, the new charge that the murder was committed
by the appellant at her house and not near the pond in Usmanpur was
Crl A. 836 of 2001 Page 21 of 68
not even put to her which has caused grave prejudice to her. Regarding
judging a question of prejudice, as of guilt, it is contended that courts
must act with a broad vision and look to the substance and not to
technicalities, and their main concern should be to see whether the
accused had a fair trial, whether he knew what he was being tried for,
whether the main facts sought to be established against him were
explained to him fairly and clearly and whether he was given a full and
fair chance to defend himself.
33. The learned additional public prosecutor has strongly refuted the
pleas and contentions raised on behalf of the appellant. According to
the learned counsel the modification of charge on 18th August, 2001 did
not prejudice the appellant in any manner, as only the time and place
had undergone the modification and not as to who had committed the
crime and with whose assistance. According to him the charge framed
on 5th April, 1997 stipulated that the appellant on or before 18th April,
1996, near pond, near Approach Road, second Pushta, Old Village,
Usman Pur along with co-accused Israr @ Bachan, Zafar and Ashok
committed murder of Joginder Singh @ Laloo and caused the evidence
of the commission of offence to disappear with the intention of
screening the offender from legal punishment and thereby committed
the offences under Sections 302,201 r/w Section 34 of IPC. Though the
statement of the appellant had been recorded under Section 313 of the
Crl. Procedure Code on 9th August, 1999, however, the charge was
Crl A. 836 of 2001 Page 22 of 68
modified on 18th August, 2001 with the consent of the appellant and
her counsel who admitted that there was error in the charge and that it
needed amendment and that the appellant shall not be prejudiced by
the same. Since, the prosecution did not want to re-examine any of the
witnesses and the appellant did not want to lead any defence evidence,
it was held that no prejudice or miscarriage of justice will be caused
and consequently, the charge was amended on 18th August, 2001
stating that on 17th April, 1996, at about noon time at House No. 12,
Gali No.-1, Arvind Mohalla, Ghonda, Delhi with the common intention
along with Israr @ Bachan @ Bhure, Rashid (absconder) and Ashok
(absconder) committed murder of Joginder @ Laloo and caused the
evidence of offence to disappear with the intention to screen the
offenders from legal punishment and thereby committed offences
punishable under Section 302 and 201 of IPC r/w Section-34 of IPC.
34. The learned additional public prosecutor referred to Section 213
Explanation-(e) stating that if „A‟ is accused of the murder of „B‟ at a
given time and place, the charge need not state the manner in which „A‟
murdered „B‟. The learned counsel also referred to Section 215 of the
Criminal Procedure Code contending that no error in stating either the
offence or the particulars required to be stated in the charge shall be
regarded at any stage of the case as material. It is asserted that in any
case, the appellant was not misled by any such error or omission nor
was there any failure of justice and consequently, on account of
Crl A. 836 of 2001 Page 23 of 68
amendment in the charge on 18th August, 2001, no benefit can be
sought by the appellant on the ground that it has occasioned a failure
of justice. The additional public prosecutor also relied on Section 216
and 217 of the Criminal Procedure Code to contend that there was total
compliance of the provisions and since it has not been established that
there is any prejudice caused to the appellant, no benefit can be sought
by the appellant. Since, the consent of the accused and her counsel
had been taken before amending the charge on 18th August, 2001,
therefore, at the appellate stage, the appellant cannot raise this point of
prejudice and it ought to have been raised before the Trial Court.
35. The learned additional public prosecutor stated that the motive
for murder has been established as it has been proved that the
appellant was known to the deceased. Referring to the statement of the
appellant, it is contended that in reply to question No.9 that Joginder
Singh, deceased, had spent some amount on making additional storey
of the House U-12, Gali No. 1, Arvind Mohalla, Delhi though the
appellant stated that it is incorrect and that she did not know Joginder
Singh, however, FIR 75/96 dated 7th February, 1996, reveals that she
had stated that the deceased Joginder Singh had been coming to her
house for the last two-three years and had been threatening her and
that she has a threat to her life from him. In the circumstances, the
allegation by the appellant that she did not know Joginder is not
correct.
Crl A. 836 of 2001 Page 24 of 68
36. The learned additional public prosecutor contended that the
photocopy of the complaint dated 25th November, 1995 is also
admissible and he relied on Section 65(c) of the Evidence Act.
According to him, PW-8 Rajesh Kumar categorically deposed that on
25th November, 1995, the deceased came to his house at about 5-6 p.m.
and wrote a complaint about the danger to his life and that in case
anything happens, the appellant should be held responsible for it. He
deposed that a photocopy was given to him and his brother Rakesh
Kumar and the original was kept by the deceased Joginder Singh. In
his cross-examination, he had deposed that the letter dated 25th
November, 1995, was addressed to Ilaka Magistrate and other police
officials, which was kept by him in his pocket, however one copy was
given to him and another was given to his brother Rakesh Kumar. He
admitted that there was no mention of Rajesh Kumar and Rakesh
Kumar in the alleged complaint.
37. The learned Addl. Public Prosecutor contended that the post
mortem report, Ex. PW1/A established the time of murder is proximate
to the time of last seen evidence by the brother of the deceased with the
appellant. According to him recoveries from the house of the appellant
shows that the deceased was murdered in the house of the appellant.
Emphasis has been laid on the CFSL report, Ex.PW 14/ F,G & H
showing the matching of blood, recovered from the house of the
appellant with the blood of the deceased. Minor contradictions
Crl A. 836 of 2001 Page 25 of 68
according to him are not material and since these are technical matters
they have to be seen with broad vision. The learned counsel relied on
AIR 1956 SC 116, Willie (William) Slancy V. State of Madhya Pradesh.
38. Reliance has also been placed on the statement of the appellant
under section 313 of Criminal Procedure Code in which she had stated
that she would produce the defense evidence, however, she did not
produce any defense evidence, especially her children who could have
deposed that she was picked up by the police in their presence from the
residence of the appellant and not from the bus stand which is the
version of the prosecuting agency. According to him there is sufficient
evidence to inculpate the appellant and the ration card and warranty
card are only to corroborate the other prosecution evidence. Even if the
ration card and warranty card of the refrigerator are not accepted, the
appellant cannot be exculpated as the other evidence is sufficient to
prove the charge against her. He stated that from the complaint filed by
the appellant it stands proved beyond reasonable doubt that the
deceased had been coming to her for the last two or three years prior to
his death. Therefore even if the ration card and warranty card are not
proved, it cannot be held that the deceased was not known to the
appellant. So long as the appellant knew the deceased the prosecution
version is established. In the circumstances it is asserted that from the
First Information Report registered at the instance of the appellant, the
motive to commit crime by the appellant is established.
Crl A. 836 of 2001 Page 26 of 68
39. The learned counsel also emphasized that the photocopy of the
complaint of the deceased which was produced by his brother is
admissible under section 65 (c) of the Evidence Act and can be acted
upon in view of the testimonies of PW 8 and PW 11. The learned counsel
also contended that the statement of PW 15 SI M.A. Khan that angocha
and maxi were recovered from the house of the appellant on 19th April,
1996 should be ignored as it is nothing but a slip of tongue as has been
observed by the trial Court also. The learned Additional Public
Prosecutor, Mr.Sawhney has relied on (2007) 7 SCC 625, Girja Prasad
(Dead) by LRs v. State of M.P to contend that it is not the law that police
witnesses should not be relied upon and their evidence cannot be
accepted unless it is corroborated in material particulars by other
independent evidence. The presumption that every person acts honestly
applies as much in favour of a police official as any other person.
Reliance has also been placed on (2001) 10 SCC 372, State (Delhi
Administration) v. Dharampal holding that failure to draw accused‟s
attention to inculpatory material to enable him to explain it in
examination of accused under Section 313 by itself does not vitiate the
proceeding, as prejudice, if any caused to the accused must be
established by him. Learned Additional Public Prosecutor has also
relied on AIR 1992 SC 1175, Mulakh Raj etc v. Satish Kumar and Ors
and AIR 1956 SC 116, Willie (William) Slaney Vs. The State of Madhya
Pradesh.
Crl A. 836 of 2001 Page 27 of 68
40. This Court has heard the learned counsel for the appellant and
the learned Additional Public Prosecutor, Mr.Sawhney at length. This is
not disputed that there is no eye witness to the murder of Joginder
Singh by the appellant Smt.Shakuntala, alleged wife of the deceased or
any of the co-accused. The case of the prosecution is based on
circumstantial evidence. While dealing with circumstantial evidence the
onus is on the prosecution to prove that the chain is complete and any
infirmity or lacunae in the prosecution case cannot be cured by a false
defence or plea. The condition precedent which must be fully satisfied
before conviction can be based on circumstantial evidence are as
follows:-
(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established. The circumstances
concerned must or should and not may be established;
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and
tendency;
(4) they should exclude every possible hypothesis except the
one to be proved; and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in
all human probability the act must have been done by the
accused.
41. The Supreme Court in a number of cases has observed that while
appreciating circumstantial evidence, Court must adopt a very cautious
approach and the conviction should be recorded or upheld only if all the
links in the chain are complete pointing out to the guilt and every
Crl A. 836 of 2001 Page 28 of 68
hypothesis of innocence is capable of being negated on evidence. This
also cannot be disputed that great care must be taken in evaluating
circumstantial evidence and if the evidence relied on is reasonably
capable of two inferences, the one in favour of the accused must be
accepted. The circumstance relied upon must be found to have been
fully established and the cumulative effect of all the facts so established
must be consistent only with the hypothesis of guilt. The Court must be
satisfied of
a. That the circumstances from which the inference of
guilt is to be drawn, have been fully established by
unimpeachable evidence beyond a shadow of doubt.
b. That the circumstances are of a determinative
tendency unerringly pointing towards the guilt of the
accused, and
c. That the circumstances, taken collectively, are
incapable of explanation on any reasonable hypotheses
save that of the guilt sought to be proved against him.
42. The case of the prosecution is based on the theory propounded by
the prosecution that the deceased and the appellant got married in
1980 after falling in love with each other and lived as husband and wife;
the property No.U-12, Gali No.1, Arvind Mohalla, Ghonda was
purchased by the father of the deceased Joginder Singh in his name by
raising the amounts from different persons and the consideration for
the property was neither paid by the deceased nor by the appellant;
somehow the property was transferred in the name of the appellant; the
deceased wanted his half share in the property, hence the property had
Crl A. 836 of 2001 Page 29 of 68
to be sold and the consideration was to be divided between the deceased
and the appellant; the appellant had developed illicit relations with
other persons including Israr who was living in the same house with the
appellant and other persons namely Jaffar and Ashok and the appellant
murdered the deceased in connivance with them so that she does not
have to sell the house and share the sale proceed with the deceased.
43. The first charge was framed on 5th April, 1997 that the appellant
on or before 18th April, 1996 had committed murder of deceased
Joginder Singh, near pond, near approach road, second pushta, Old
village Usmanpur.
44. After the supplementary charge sheet was filed against co-
accused Israr, challan was filed against co-accused Israr @ Bachan @
Bhura @ Rashid son of Chotey and the charge framed on 8th March,
2000 was that Israr on 17th April, 1996 at noon time with Shakuntala,
Jaffar and Ashok, committed murder of Joginder at House No.U-12,
Gali No.1, Arvind Mohalla, Ghonda. Despite framing the charge on 8th
March, 2000 against Israr that he murdered the deceased Joginder
Singh @ Lallu with appellant not near pond, but near approach road,
second Pushta, Old Village Usmanpur, the charge against the appellant
was neither amended nor modified rather the statement of the appellant
was recorded under Section 313 of Criminal Procedure Code and
thereafter the statement of Israr was also recorded under Section 313 of
Criminal Procedure Code on 30th January, 2001 and only after the
Crl A. 836 of 2001 Page 30 of 68
evidence was concluded, the charge was modified against the appellant
on 18th August, 2001 stating that the appellant had murdered Joginder
on 17th April, 1996 at about noon time at House No. U-12, Gali No.1,
Arvind Mohalla, Ghonda in furtherance of common intention with Israr;
Zafar (absconder) and Ashok (absconder).
45. The first link in the prosecution version is that appellant and the
deceased Sh.Joginder were married in 1980 in a temple and it was a
love marriage and after marriage they lived as husband and wife. This is
not disputed that the appellant prior to her alleged marriage with
Joginder was married to Pritam Singh. This has also not been
established that Pritam Singh had died before the alleged marriage of
appellant with deceased Joginder. It has further not been established
that the marriage between the deceased and the appellant had been
dissolved, though a feeble attempt was made by some of the witnesses
by deposing orally about the alleged dissolution of marriage between
appellant and Sh. Pritam Singh took place. However, nothing has been
produced to prove that the marriage between the appellant and her
husband Pritam had been dissolved.
46. PW-8 Rajesh Kumar had deposed that the marriage between the
deceased and the appellant was a love marriage and appellant and
deceased Joginder Singh lived with the family of deceased for 2-3 years
and thereafter he had rented a house at Bhim Gali, Vishwas Nagar.
Besides the oral statement of PW-8 Rajesh Kumar and PW-11 Rakesh
Crl A. 836 of 2001 Page 31 of 68
Kumar that the deceased got married to appellant and it was a love
marriage and they lived together as husband and wife, there is no
cogent reliable evidence produced by the prosecution about their love
marriage and that they lived together as husband and wife. PW-8 and
PW-11 Rajesh Kumar and Rakesh Kumar deposed that after marriage
appellant and the deceased lived with them at 518/1, Karkari road,
Delhi and thereafter they shifted to Bhim Gali in Vishwas Nagar. There
is no evidence that the appellant lived with Joginder deceased at 518/1,
Karkari road, Delhi or that an accommodation was taken on rent in
Bhim Gali, Vishwas Nagar and they resided there or resided as husband
and wife. If the appellant and the deceased had lived at Bhim Gali,
Vishwas Nagar as husband and wife, the prosecution ought to have
produced some evidence on the basis of which it could be inferred that
they lived as husband and wife in a rented accommodation at Bhim
Gali, Vishwas Nagar. Neither the landlord nor any person from Bhim
Gali, Vishwas Nagar who had seen appellant and the deceased living as
husband and wife had been examined by the prosecution to establish
that they lived as husband and wife at Bhim Gali, Vishwas Nagar in a
rented premises. In the opinion of this Court on the basis of evidence
produced it cannot be inferred that the appellant had married the
deceased and lived with him as his wife. The prosecution has not
established even the first link that the appellant and the deceased were
married and lived as husband and wife. It has not been established that
after marriage the deceased and the appellant lived with PW8 and PW
Crl A. 836 of 2001 Page 32 of 68
11 and the father of deceased and thereafter in a rented accommodation
in Bhim Gali. Both the witnesses admitted that there was no child from
the alleged marriage between the appellant and deceased after 1980.
However, it is reflected from the evidence that the appellant got children
after 1980. This is also not the case of prosecution that the children
were illegitimate. These facts completely demolish the prosecution
version that the deceased and the appellant were married in 1980 and
lived thereafter as husband and wife.
47. The next factor in the chain to establish on the basis of
circumstantial evidence by the prosecution is that the house No.U-12,
Gali No.1, Arvind Mohalla, Ghonda was allegedly purchased by the
father of the deceased by paying Rs.50,000 or Rs.52,000/- in his name.
PW-8 Rajesh Kumar had parroted along with his brother Rakesh
Kumar, PW11 that the said house was purchased by Sh.Joginder
Singh, deceased from the money which was given by their father to the
deceased. Surprisingly no document has been produced of any sort
which will show in any manner that the house was purchased in the
name of Joginder Singh in 1991 as has been deposed by PW-11 Rakesh
Kumar. They have also not deposed that the transaction took place in
their presence. If any consideration was paid then to whom the
consideration for the said house was paid is also not established.
Whether any documents were executed by the seller in favor of
purchaser has not been deposed. In his examination PW-11 could not
Crl A. 836 of 2001 Page 33 of 68
divulge the name of the seller from whom the house was purchased by
his brother from the consideration paid by the father of the deceased. In
absence of any document of any type, on bald statements of PW-8 and
PW-11 it cannot be held that the property No.U-12, Gali No.1, Arvind
Mohalla, Ghonda was purchased by the deceased Joginder Singh from
the consideration paid by his father. Even the father who is alleged to
have given the consideration for purchase of the property No.U-12, Gali
No.1, Arvind Mohalla, Ghonda has not been examined. No evidence has
been produced as to from where this amount of Rs.50,000/- to
52,000/- was taken by the father to be paid to the seller of the house in
the name of deceased Joginder Singh. Perusing the evidence of PW-8
Rajesh Kumar, PW-11 Rakesh Kumar, it is apparent that there is no
ring of truth in their testimony in respect of purchase of house by their
father in the name of deceased. It has not been disclosed as to how any
rights were exercised by the deceased as the owner of said house.
Whether the said property got mutated after purchase in the name of
the deceased? Whether he was paying the house tax after purchasing
the property? Whether the electric connection was in his name or
continued in the name of previous owner? Not even a feeble attempt has
been made by the prosecution to ascertain and establish these relevant
facts. Bald testimonies of the brothers of the deceased in the facts and
circumstances is just not sufficient to establish the facts alleged by the
prosecution. Number of police officials had been examined but none of
them had even attempted to address these questions. In these
Crl A. 836 of 2001 Page 34 of 68
circumstances even this link that the house No. U-12, Gali No.1, Arvind
Mohalla, Ghonda was purchased by the father of the deceased in the
name of his deceased son Joginder has been established.
48. The next circumstance as propounded by the prosecution is that
this House No. U-12, Gali No.1, Arvind Mohalla, Ghonda (hereinafter
referred to as disputed house) was transferred by the deceased in the
name of the appellant. Even for this proposition there is no
documentary evidence of any type except the bald statements of Rajesh
Kumar and Rakesh Kumar, PW-8 and PW-11 respectively. This is not
the version of the prosecution that Joginder without executing any
documents started claiming that the house would belong to appellant
as appellant had got married to him and had been living as his wife,
Rather PW-11 had accepted that he had not seen any document
regarding the transfer of the house in favour of Shakuntala. If he had
not seen any document then what was the basis of alleging that the
house was purchased in the name of Joginder Singh and later
transferred in the name of appellant has not been explained and
established. Such testimonies are utterly unreliable and cannot be the
basis of any conviction in the case of circumstantial evidence. The
prosecution has not even attempted to ascertain as to when the
property was mutated, if mutated, in the record of House Tax
department in the name of appellant or what is the basis of alleging
that from the deceased the property was got transferred by the
Crl A. 836 of 2001 Page 35 of 68
appellant in her name. If the property is in the name of appellant or her
mother, then it should have been established as to since when the
property is in the name of the mother of the appellant or appellant. If
the property is in the name of appellant or his mother, as had been
disclosed by the appellant in her complaint against deceased, on the
basis of which an FIR was registered against the deceased under section
506 of IPC, then it should have been explained and established as to
when the property was mutated or transferred in the name of appellant
or her mother. This is not even the case of the prosecution that the
property was got transferred from the deceased in the name of the
mother of the appellant. This also has not been divulged as to in whose
name are the electricity and water connections of the house. Rights in
an immovable property cannot be held to be transferred on the basis of
bald oral statements of brothers of the deceased. From the record of the
trial court it appears that even no investigation has been made by the
prosecution regarding these facts which would have established as to
who has been the owner at the time of death of the deceased and who
was the previous owner of the said property.
49. The other fact alleged by the prosecution to establish that the
house was purchased in the name of deceased and was in his
possession and that he had been exercising rights as an owner is
regarding the construction of two rooms. However, when these two
rooms were constructed and who had constructed has not been proved.
Crl A. 836 of 2001 Page 36 of 68
The prosecution has not examined any independent witness who could
depose and prove about the alleged construction of the rooms by
Joginder @ Lalla except the bald statements of deceased‟s two brothers
who have also not deposed as to when these rooms were constructed;
from where the money was arranged by the deceased; whether they
have any knowledge as to from where the building material was
purchased. This is not the version of the witnesses that the rooms were
constructed in their presence. Rather the tenor of their testimonies is
that they had not been visiting the house of the appellant very
frequently. There is no cogent evidence that the rooms were constructed
by the deceased Joginder in the disputed house. Consequently even this
fact has not been established and the testimonies of PW-8 and PW-11
cannot be relied on to establish these allegations beyond reasonable
doubt. It was for the prosecution to have produced the relevant
documentary evidence which has not even been investigated and
produced nor any cogent reasons given for not producing the same. In
the circumstances it cannot be held that the prosecution has
established that the disputed house was purchased by the father of the
deceased who was a tailor, in the name of his son which was
transferred in the name of appellant and in the house two rooms were
constructed by the deceased. The prosecution has not even tried to
ascertain these relevant facts from any of the neighbors or any other
person in the locality.
Crl A. 836 of 2001 Page 37 of 68
50. Two brothers in their statement had rather deposed that the
consideration for the said house was paid by their father after collecting
the money from different persons. If that was the fact then the
prosecution should have endeavored either to examine the father or any
of those persons who allegedly had lent the money to the father of the
deceased for payment of consideration for purchasing the disputed
property. The very basis of the prosecution version is missing and not
just a few links in the theory of circumstantial evidence.
51. To substantiate the allegation that the deceased was living with
the appellant as her husband, a photocopy of the ration card was
produced by the prosecution, which was exhibited as Ex. PW-5/E. The
said photocopy of the ration card was given by the one of the brothers of
the deceased after his murder and it shows the appellant as the wife of
Joginder Singh. In the details of the members besides the name of the
deceased Joginder Singh, name of Bunty is also mentioned as son of
Joginder Singh, aged 8 years. The alleged ration card was allegedly
issued on 17th November, 1992 on the address of 528/5B, Gali No. 6
Vishwas Nagar, Shahdara. According to PW-8, Sh. Rajesh Kumar, the
deceased and the appellant had shifted after living with them to a
rented house at Bhim Gali, Vishwas Nagar and not to Gali No. 6, House
No. 528/5B. Which is this house and how the ration card was obtained
at this address, has not even been explained. The deposition of PW-11
Rakesh Kumar is also about the deceased and the appellant having
Crl A. 836 of 2001 Page 38 of 68
shifted to Bhim Gali in Vishwas Nagar and not to Gali No. 6 as
stipulated on the said photocopy of the ration card. The address of the
brothers and father of the deceased is 518/1, Karkari Road, Delhi.
From the testimonies of the witnesses it is apparent that a separate
ration card was not made at the address of his father by the deceased.
PW-11 Rakesh Kumar rather deposed that he could not tell about the
ration card of his brother. He could not even tell whether the name of
the appellant was added in their ration card or if his deceased brother
was having a separate ration card for his family. From the deposition of
various witnesses, it has also emerged that the appellant has three
children Bunty, Joshi, and Vandana. From their ages it is apparent that
two of them were born after the alleged love marriage of appellant with
deceased, still two of these children father was not the deceased. One of
the logical conclusion from this is that the appellant did not live with
the deceased as his wife. Appellant has a husband who is alive and she
is not divorced. In the alleged photocopy of the ration card, the name of
only child Bunty is shown, whose father‟s name is shown as Joginder
Singh, the deceased. Admittedly, it is the case of the prosecution that
there were no children from the alleged marriage between Joginder
Singh and the appellant. If in 1992 when the alleged ration card was
made, Bunty was 8 years old, thus he would have been born in the
year 1984 subsequent to the year 1980, when as alleged by the
prosecution the appellant and deceased started living together as
husband and wife, The prosecution witnesses are unable to explain as
Crl A. 836 of 2001 Page 39 of 68
to why only the name of one of the child from the marriage between
Shakuntala and Pritam Singh is shown in the alleged photocopy of the
ration card and not of the other children despite appellant allegedly
living with the deceased as his wife. This is also not the case of the
prosecution that other two children were living somewhere else or with
their natural father or with their maternal Grandmother.
52 Since the photocopy of the alleged ration card, is propounded by
the prosecution, it was for the prosecution to prove it. Why the record
from the ration card office could not be produced, has not been
explained by the prosecution. In Subhash Harnarayanji Laddha
(supra), a zerox copy of the agreement to sell taken from the
Collectorate was produced and this was not established as to at whose
instance the zerox copy was filed with the Collector of the District which
fact had not been established and in the circumstances, the Supreme
Court had given benefit of doubt to the accused and had allowed the
appeal and the conviction and sentence were set aside. This also
cannot be disputed that a document can be received as evidence under
the head of secondary evidence only when the copies made from are
compared with the originals or are certified copies or such other
documents as enumerated under Section 63 of the Evidence Act. A
photocopy of the ration card can be taken as secondary evidence only if
it had been compared with the original or had there been any evidence
so as to ascertain who had got the photocopy from the original ration
Crl A. 836 of 2001 Page 40 of 68
card. The photocopy of alleged ration card was produced by Rajesh
Kumar, however, he has not deposed that he had got the photocopy
from the original ration card. Police witnesses have also tried to depose
that the copy of the ration card was seized from the disputed house of
the appellant which is a false testimony by the prosecution as the copy
of the alleged ration card was given by the brother Rajesh Kumar, PW
8, on 23rd April, 1996 as proved by Ex PW5/D.
53. The photocopy of the alleged ration card could be proved and
would be admissible only in absence of primary evidence. If the original
evidence is not produced on account of failure of the party to file the
same and it is not proved to be valid the same party is not entitled to
introduce secondary evidence of its contents. In Smt. J. Yashoda
(supra), the Supreme Court had held that secondary evidence of the
contents of a document cannot be admitted without non-production of
the original being first accounted for in such a manner as to bring it
within one or the other of the conditions provided for in Section 65 of
the Evidence Act. This is not the case of the prosecution that the
original record of the ration department of the year 1992 has been
destroyed nor any other ground has been made out for production of
this secondary evidence. The argument advanced by the Learned Public
Prosecutor that the photocopy is admissible under section 65 (c) of the
Evidence Act is reflective of non comprehension of the said provision
and ignorance of the record of the Ration Department. Primary evidence
Crl A. 836 of 2001 Page 41 of 68
regarding the ration card is the record of the Ration Department on the
basis of which the Ration Card is issued. Being a certified copy of
record of the department, ration card is admissible under section 74 of
the Evidence Act. However to prove the photocopy of the ration card, the
record from the ration department should have been summoned. No
effort was even made to call any official of the ration department
regarding the alleged ration card. Perusal of the alleged photocopy also
reveals that it does not bear a printed ration card number. Though, the
registration number is given however, the printed/endorsed number is
missing as also the photograph of the head of the family. In Arti
Bhargava (supra), it was held by the Supreme Court that the
genuineness of the photocopies cannot be guaranteed unless there is
evidence that someone had compared the photocopies with the original
or had obtained the photocopies from the original. In The United India
Insurance Company Limited (supra), it was held that production of
photocopy of driving license was not sufficient to prove that the driver
had a valid license and its genuineness was not admitted.
54. The brothers of the deceased on the one hand had shown their
ignorance regarding whether their deceased brother had a separate
ration card and whether the name of the appellant was incorporated in
their ration card, however, on the other hand, Sh. Rajesh Kumar, PW
8, had produced the alleged photocopy of the ration card after the death
of his brother which was also attempted to be projected as seized from
Crl A. 836 of 2001 Page 42 of 68
the house of the appellant by the prosecution witness. In the
circumstances for the foregoing reasons the said ration card Ex. PW-
5/E is not admissible and cannot be relied on to establish that the
appellant was married to deceased Joginder Singh and had lived with
him as his wife.
55. The prosecution cannot rely on the documents which have been
exhibited but which have not been proved as per the requirements of
the provisions of Indian Evidence Act by mere marking the photocopies
as Exhibits in the absence of originals or any other comparison with the
same. Reliance for this can be placed on AIR 1971 SC 1865, Sait
Tarajee Khimchand & Others v. Yelamarti Satyam & Others; (2003) 8
SCC 745, Narbada Devi Gupta v. Birendra Kumar Jaiswal & Others and
(1995) Rajdhani Law Report 286, Sudhir Engineering Co. v. Nitco
Roadways Ltd. In Narbada Devi Gupta (supra), the Supreme Court had
held that mere production and marking of a document as exhibit is not
enough, as execution of a document has to be proved by admissible
evidence. However, where documents produced are admitted by the
signatories thereto and thereafter they are marked as exhibits, no
further burden to lead additional evidence to prove the writing as its
execution survives. In this case, the plaintiff-landlord had averred that
signed blank stamp papers were given to the tenant to conduct pending
litigation in his absence, however, no evidence was led in proof thereof.
The tenant, however, had taken a specific plea of tenancy based on rent
receipts signed by the landlord. The landlord had not disputed his
Crl A. 836 of 2001 Page 43 of 68
signatures nor made any consequential amendment to the plaint nor
had taken the plea of fraud and forgery and in such circumstances it
was held by the Apex court that no further burden of proof was on
defendant to lead evidence to prove writing about the rent receipt and
their execution. However in the present case it was for the prosecution
to lead secondary evidence in accordance with the provisions of
Evidence Act which has not been done and a photocopy of ration card
in the facts and circumstances has not been proved and cannot be
considered. In Sait Tarajee Khimchand & Others (supra), referring to
Order XIII Rule 4 of the Code of Civil Procedure, it was held that mere
marking of a document as an exhibit does not dispense with its proof. A
single Judge of this Court in Sudhir Engineering Co. (supra) had held
in reference to the Original Side Practice Direction 3/74 that when a
document is produced in evidence and is marked as an exhibit, then it
is only for identifying the documents and is not its proof, as proof of the
contents of the documents must be proved and established by
independent evidence.
56. Another factor which discredits the authenticity of the photocopy
of the ration card is that the deceased was arrested in a TADA case and
he remained incarcerated from 1992 to 1995. If the deceased remained
incarcerated from 1992 to 1995, the prosecution has not been able to
establish as to how he could have obtained a ration card in November,
1992. Consequently, on the basis of the photocopy of the ration card, it
Crl A. 836 of 2001 Page 44 of 68
cannot be inferred conclusively that the appellant was married to the
deceased Joginder Singh and that they lived as husband and wife.
57. The next document which is relied on by the prosecution is the
alleged warranty card of Godrej Refrigerator which was exhibited as Ex.
PX. The year of purchase is shown as 1st October, 1995. The said
warranty booklet does not bear the signature of the purchaser.
Though, it gives the address of the disputed house of the appellant,
however, this document cannot be construed as a cogent and sufficient
evidence to establish that Joginder Singh was married to the appellant
and was living in the disputed house with her. This is not disputed that
the deceased Joginder Singh was a TADA detenue from 1992-1995. The
warranty card was not seized from the house of the appellant nor the
refrigerator on which the said warranty card Ex. PX was issued was
recovered or seized or was found in the house of the appellant. PW-5 in
his examination on 7th July, 1999 had deposed that the photocopy of
the ration card and papers relating to purchase of Godrej Fridge were
seized from the house of the accused situated at Arvind Mohalla,
Brahmpuri, Delhi and he had prepared a seizure memo Ex. PW 5/D
which was signed by him at Point „A‟. The statement of the said witness
is palpably incorrect as according to Ex. PW-5/D. These documents
i.e., the photocopy of the ration card and the warranty card were given
by Rajesh Kumar, which is also apparent from Ex. PW-5/D. The
observation of the Sessions Judge that this was on account of a slip of
Crl A. 836 of 2001 Page 45 of 68
tongue cannot be accepted in the facts and circumstances. This is
rather reflective of the manipulation done by the prosecution authority
in the facts and circumstances. This is not the case of the prosecution
that the refrigerator was purchased by the deceased and kept in the
house of the appellant and was disposed of by her. Merely because a
document of a product reveals a particular address, does not mean that
it shows the rights of the purchaser at the address because the address
is not checked by the seller. In this case even this has not been
established as to who had filled the warranty card and on what basis
the address of the appellant was given for warranty of refrigerator. The
least prosecution could have done was to examine seller who had
issued the warranty card. In the opinion of this Court this warranty
card does not establish any version of the prosecution case.
58. The prosecution version is that the appellant was arrested from
the bus terminus, however, who had identified her in a crowded place
and how she had been arrested has not been explained satisfactorily. It
is also highly improbable that if she was trying to flee from Delhi after
allegedly committing the murder of her husband she would not have
any bag or luggage or bus ticket or any other document in her
possession, which would reflect that she was trying to abscond. The
prosecution version is also belied as according to prosecution the
search of the appellant at the time of arrest was carried out by ASI
Veena Sharma at platform No. 38. However, the testimony of PW-13
Crl A. 836 of 2001 Page 46 of 68
Veena Sharma is that on 18th April, 1996, she was working as duty
officer at PS Seelampur and constable Sanjeev had brought a Rukka
and on the basis of Rukka, an FIR was reflected which was Ex. PW-
13/A. She did not depose that she had carried out the search of the
appellant and the articles, as alleged, were recovered from her. This
creates a substantial doubt about the version of the prosecution which
have not been clarified nor established. In the circumstances it cannot
be inferred that the appellant was arrested from the Bus Stand on 23rd
April, 1996. The house of the appellant was opened after her alleged
arrest from the keys, which were in her possession, will also not
inculpate her in any manner nor will show that she was arrested from
the Bus Stand. This is not disputed that the appellant was living in
that disputed house. If she was living in the disputed house, it was
natural for her to have the keys of the house and from the keys
allegedly recovered from her if the house was opened nothing adverse
can be inferred against her. The plea of the learned prosecutor that the
appellant had stated in her statement that she will examine her
children in defense that she was arrested on 19th April, 1996 and she
did not examine them proves that she was arrested on 23rd April, 1996.
This plea is devoid of any legal force. It was for the prosecution to
establish that she was arrested from Bus Stand on 23rd April, 1996. The
lady police official who had carried out her search at the Bus Stand and
article were recovered from her denied the version of the prosecution.
Rather other police witnesses and prosecution witnesses have deposed
Crl A. 836 of 2001 Page 47 of 68
about the alleged recoveries made on 19th April, 1996 from the house of
the deceased even before the disclosure statement was recorded on 23rd
April, 1996. These testimonies which demolish the prosecution case
could not be ignored on the premise that they were slip of tongue and
not very material. This Court on consideration of the entirety of the
evidence find the version of the prosecution about the arrest of the
appellant from the Bus Stand unreliable and it cannot be held to be
established on account of not examining her children by the appellant.
Burden to prove was on the prosecution and the burden of the
prosecution does not shift. The argument of the learned prosecutor
cannot be accepted in the facts and circumstances.
59. Another link propounded by the prosecution is the alleged illicit
relations between the different persons with Shakuntala when Joginder
was in jail in a TADA case from 1992 to 1995. However, the testimony
of PW-8 and PW-11 are contradictory in this regard, as PW-8 had
deposed that he had visited his brother Joginder when he was in jail
whereas PW-11 had deposed that he had never visited the brother in
jail. This is not the case of the prosecution that brothers of the deceased
came to know about the illicit relations of the appellant from his
brother. What is the basis of knowledge of the two brothers of the
deceased about the illicit relations of the appellant and with whom has
not been divulged In any case, on the bald statements of PW-8 and PW-
11, it cannot be inferred that the appellant had developed illicit
Crl A. 836 of 2001 Page 48 of 68
relations with Nasiruddin and other persons. PW 11 who is the star
witness of the prosecution has categorically alleged that the appellant
was having illicit relationships with many persons including Israr the
co-accused. However, the said witness has not even disclosed as to
what is the basis of his deposition that the appellant had developed
illicit relations with number of persons. This is not the version of the
said witness that he had seen her in a compromising position with any
of the person. If that be so, merely deposing that she had developed
illicit relations with number of persons rather reflects the falsity of the
deposition of the prosecution‟s star witness. Who are the other persons
has not been even disclosed. Where they were living has not been
disclosed. Who had seen appellant and other person in compromising
position and doing such acts or indulging in such behavior which would
give reasonable apprehension of illicit relations among them, has been
left to the imagination and surmises and conjecture. This cannot be the
case of the prosecution that whatever is deposed by the brothers of the
deceased who was TADA detenue cannot be impeached and has to be
accepted as truth without any corroboration. In this case even the facts
have not been disclosed and deposed and what is divulged is the
opinion and that too without any basis. Such testimonies cannot be
held to be reliable for any purpose.
60. Also on the basis of disclosure statement of the appellant about
these facts, it cannot be held that they have been established. The
Crl A. 836 of 2001 Page 49 of 68
observations of the Session Court in this regard are based on no
evidence hence it cannot be held that this link has been established.
Similarly, the allegation that another co-accused Israr @ Bachchan @
Bhure and the appellant had developed illicit relations cannot be
accepted merely on the basis of disclosure statement of the appellant.
On the basis of the alleged disclosure statement, nothing was recovered
by the prosecution, which could have established illicit relations
between the appellant and Nasiruddin and Israr. Even this has not
been established that Israr was staying in the disputed house as a
tenant. Where Nasiruddin was staying has not been divulged and
explained. This is no more res integra that a confession made by an
accused person while he is in custody must be excluded from evidence
and that it can be only admissible if it is conformity with the conditions
prescribed by Section 27 of the Evidence Act. The various requirements
of the Section can be summed up as follows:-
(1) The fact of which evidence is sought to be given must be
relevant to the issue. It must be borne in mind that the
provision has nothing to do with question of relevancy. The
relevancy of the fact discovered must be established according
to the prescriptions relating to relevancy of other evidence
connecting it with the crime in order to make the fact
discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some
information received from the accused and not by the
accused‟s own act.
(4) The person giving the information must be accused of any
offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information
received from an accused in custody must be deposed to.
Crl A. 836 of 2001 Page 50 of 68
(7) Thereupon only that portion of the information which
relates distinctly or strictly to the fact discovered can be
proved. The rest is inadmissible.
61. As observed in Pulukuri Kotayya and Ors. Vs. King-Emperor, AIR
(34) 1947 PC 67 that it can seldom happen that information relating to
the discovery of a fact forms the foundation of the prosecution case. It is
only one link in the chain of proof, and the other links must be forged
in manner allowed by law. Merely on the basis of disclosure statement
of the appellant, it could not be held that there were illicit relations
between the appellant and the accused Nasiruddin and accused Israr.
In any case, accused Israr on the same evidence as in the case of the
appellant has already been acquitted and even no petition seeking leave
to appeal has been filed against the judgment acquitting Israr.
62. The learned prosecutor had relied on the photocopy of the
complaint which was given by the brother of the deceased to the police
authorities after identification of the body of the deceased implicating
the appellant and other in case he does not come back after four or five
days.
63. If the deceased was indeed living in the disputed house with the
appellant, even after threatening her, he would not have left the house
after telling her that he would come back after some time. This rather
negates the version of the prosecution that the deceased was living in
the house of the appellant as her husband. This is also not the case of
Crl A. 836 of 2001 Page 51 of 68
the prosecution that the deceased was turned out by the appellant. The
deposition of the star witness of the prosecution Pw 11 brother of the
deceased about the frequent quarrels between the appellant and the
deceased are also uncorroborated. Though relative witnesses are not to
be treated as untruthful witnesses, however, if from their testimonies, it
is apparent that they are trying to shift or camouflage the real fact then
their testimonies need to be viewed with caution and corroboration of
the same is required. No witness has been examined or the fact
established in any manner to show that the appellant had been living
with the deceased as his wife and that there had been quarrels between
them. Though, this witness has deposed that after the quarrel with the
appellant, the deceased used to live sometimes in the house of his aunt,
however, which aunt, has not been disclosed nor any aunt of the
deceased has been examined to establish the same. The said star
witness of the prosecution PW-11 has also relied on the alleged
photocopy of the written complaint by the deceased, Ex. PY addressed
to PS Vivek Vihar, District Magistrate about the threat to his life from
Appellant, Brahmodevi, Joshi, Bunty and Nasiruddin. Original of
which was allegedly kept by him and photocopy of which were given by
the deceased to his father and the brother. Photocopy of this alleged
complaint has not been proved and reliance can be placed for the
reasons which have been enumerated regarding proof of the alleged
photocopy of the alleged ration card. In any case it has not been
established that the writing on the alleged complaint is of the deceased.
Crl A. 836 of 2001 Page 52 of 68
Though the brothers have orally stated that it was in the handwriting of
the deceased, however, their testimonies are unreliable and in the
circumstances, handwriting and signatures of the deceased ought to
have been established by comparing them with the admitted
handwriting and signature of the deceased. The deceased was a TADA
detenue and his admitted signature and handwriting must be available
in the record of the TADA case.
64. Even in the alleged complaint to the SHO Vivek Vihar, the
deceased did not disclose that the disputed property was purchased by
his father from the funds raised by him and given to him in his name.
the version given is that the appellant was living since 1985 at House
B-20, Bramhpuri, Gali No.4 as his wife. The alleged complaint to the
police stipulates that he did not know that his alleged wife Shakuntala
Devi was already married. It was not disclosed that as to how the
alleged disputed house was transferred by the deceased in her name.
Rather the allegation was made against the mother of Shakuntala Devi,
the appellant that she supplies the girl and the cases regarding supply
of the girl are pending against his mother-in-law. Perusal of Ex. PY, the
alleged photocopy does not have any date under the alleged signatures
of Sh.Joginder Singh. On the left hand side, date is written in English
and 25th November, 1995 is mentioned, underneath which the word
Saturday is also written. The alleged signatures of Sh.Rakesh and
Rajesh appear to be of 17th April, 1976. Why the brother had signed on
Crl A. 836 of 2001 Page 53 of 68
17th April, 1996 when the complaint had already been given on 25th
November, 1995 goes without explanation. Though the alleged
photocopy shows the endorsement of police station Seelampur,
however, none of the police witness have identified or certified that the
endorsement on the photocopy is that of the concerned police station.
In the circumstances, on the basis of Ex. PY, the veracity and
authenticity of which is doubtful, the inculpability of the appellant
cannot be inferred.
65. In order to falsify the statement of the appellant under Section-
313 of the Crl. Procedure Code that she did not know Sh. Joginder
Singh, the prosecution has relied on an FIR dated 7th February, 1996,
recorded on the complaint of the appellant detailing that Joginder Singh
had threatened her to give the property papers of the disputed property
which was in the name of her mother by putting a revolver on her head
leading to registration of FIR under Section 506 of IPC. Having relations
with a person and living with him as his wife after marriage is
substantially different than knowing a person. The entire case of the
prosecution is that the appellant was the wife of the deceased and if a
question has been put to her whether she knew him and if it has been
answered by her in that context that she does not know him, it cannot
be construed against her nor it can be held that her statement is not
correct. In the circumstances on the basis of the FIR filed by the
appellant, her statement u/s 313 of Cr.P.C cannot be impeached by the
Crl A. 836 of 2001 Page 54 of 68
prosecution. The prosecution version is not established merely by
demonstrating that the appellant knew the deceased. It was incumbent
upon the prosecution to establish that there was love marriage between
the deceased and the appellant and they co-habited as husband and
wife from 1980 till 1992 when the deceased was incarcerated in case of
TADA.
66. PW-3 HC Sukhbir Singh in his deposition stated that on 18th
April, 1996 that no lady maxi was deposited by SI M.A.Khan, but it was
instead deposited on 19th April, 1996 along with printed angocha (towel)
and two electrical wires. The said witness denied that whenever SHO
needed the pulandas, they were handed over to him and that they were
tampered with. PW-7 SI Mukesh Kumar the draftsman rather deposed
that when he reached at the spot of disputed property of the appellant,
main door was lying open and all the rooms and kitchen was open. At
that time, he admitted that he had not shown Miani (Parchhatti) in the
site plan prepared by him and had also not shown any point where any
maxi piece or wires were recovered. Even PW-5 Constable, Sanjiv
Kumar had deposed in his cross-examination that case property was
seized in his absence and he did not know the total length of the electric
wire, which was wrapped around the gunny bag having the dead body.
He also admitted that he did not disclose that maxi piece was in torned
condition or any portion was missing. Recoveries of a piece of maxi and
wire also appears to be very doubtful. The piece of maxi was allegedly
Crl A. 836 of 2001 Page 55 of 68
kept in the middle of interfloor room to be discovered by anyone without
any effort. If the appellant had used the maxi to tie around the neck of
the deceased, then why she had to tear a portion of it and to keep it in
her room defy logic. It is not that the piece of maxi which was
discovered allegedly pursuant to the disclosure statement did not have
blood on it. But on comparison with the blood of the deceased the blood
on the maxi did not match. In any case as already held by this Court it
has not been established that the recovery was made pursuant to
disclosure statement as the disclosure statement was made on 23rd
April, 1996 whereas the witnesses Pw 11 and Pw 15 have deposed that
the recoveries were made on 19th April, 1996. Date of recovery as given
by these witness could not be ignored on the ground that it was slip of
tongue. This in any case creates a substantial doubt about the version
of the prosecution. The photograph taken by the prosecution regarding
the piece of maxi when it was recovered speaks volume about the doubt
in the prosecution version. The photograph which is as under shows
that the torn maxi piece has been kept in the middle of interfloor which
does not have any door and no effort seems to have been made even to
conceal and camouflage it in any manner. On the basis of entire
testimonies and the facts and circumstances, it rather appears that the
alleged piece has been planted.
Crl A. 836 of 2001 Page 56 of 68
67. The testimony of PW-11 that he had left the deceased at the
house of the appellant on 17th April, 1996 despite knowing that there
had been a quarrel and threats to his life is highly suspicious. Even
after leaving him on 17th April, 1996 and the deceased categorically
telling him that he would come back by the evening, not enquiring
about him till 19th April, 1996 also casts a doubt about the credibility of
the testimony of PW-11. The various inherent contradictions and the
fact that PW-11 is the brother, in the present facts and circumstances
and on account of various circumstances enumerated hereinabove, the
testimony of the last seen witness appears to be unreliable so as to
Crl A. 836 of 2001 Page 57 of 68
inculpate the appellant. The circumstances as propounded by the
prosecution no doubt creates suspicion against the accused/appellant,
but suspicion by itself, howsoever strong it may be is not sufficient to
take the place of proof and warrants a finding of guilt of the accused.
Reliance for these can be placed on State of Punjab v. Bhajan Singh,
(1975) 4 SCC 472; Mousam Singha Roy v. State of West Bengal (2003)
12 SCC 377, relying on Sarvan Singh Ratan Singh v. State of Punjab,
AIR 1957 SC 637 where it was held that there may be element of truth
in the version of the prosecution against the accused and considering
as whole the prosecution story may be true; but between “may be true”
and “must be true” there is inevitably a long distance to travel and the
whole of this distance must be covered by the prosecution by legal,
reliable and unimpeachable evidence before the accused can be
convicted. The Supreme Court had also held that a degree of agony and
frustration may be caused to the families of the victim by the fact that a
heinous crime may go unpunished, but then the law does not permit
the courts to punish the accused on the basis of moral conviction or on
suspicion alone. The burden of proof in criminal trial never shifts and it
is always the burden of the prosecution to prove its case beyond
reasonable doubt on the basis of the acceptable evidence.
68. The Sessions Court has dealt with the major discrepancies in the
statement of PW-5 and PW-15 as a slip of tongue. Perusal of the
testimonies of these witnesses where they have categorically made
Crl A. 836 of 2001 Page 58 of 68
statements which are not inconsonance with the version of the
prosecution cannot be construed as a slip of tongue. In any case, if
they were allegedly a slip of tongue leading to some ambiguity, it was for
the prosecution to re-examine them and get it clarified. PW-5
categorically deposed that alleged photocopy of the ration card and the
warrantee cards were seized from the appellant‟s house which is
contrary to the prosecution record. This cannot be construed as a slip
of tongue rather it reflects the unreliability of the version of PW-5,
similarly the deposition of PW-15 SI M.A.Khan deposing that the piece
of maxi and electric wire were recovered on 18th April, 1996 and had
been deposited in Malkhana cannot be justified on the ground of a slip
of tongue. These discrepancies which have been ignored by the trial
court as mere slip of tongue rather they go to the root of the matter and
destroys very the basis of the version of the prosecution and cannot be
permitted in the facts and circumstances. In any case such
contradictions or discrepancies are sufficient to create a reasonable
doubt in favour of the accused especially when the motive for murder
and various important links that the deceased was married to the
appellant and they lived as husband and wife and the house was
purchased in the name of the deceased and later on transferred in the
name of the appellant and that the appellant had developed illicit
relations have not been established at all . The discrepancies in the
prosecution version by its different witnesses in our opinion cannot be
termed to be minor discrepancies of a trivial nature.
Crl A. 836 of 2001 Page 59 of 68
69. In the present facts and circumstances whether or not the
appellant was prejudiced on account of amendment in the charge after
the conclusion of evidence and recording of statement of the appellant
under Section 313 of the Criminal Procedure Code. What is to be
considered is whether the appellant was aware of the basic ingredients
of that offence; the main facts sought to be established against her on
account of the change/modification of the charge were explained to her
clearly and she got a fair chance to defend herself. The charge as
framed against the appellant was that she committed the murder of the
deceased Joginder Singh on or before 18th April, 1996 near pond, near
approach, road second pushta, Old Village Usmanpur along with Israr,
Jaffar and Ashok out of whom Jaffar and Ashok were declared
proclaimed offenders. After the statement of the appellant/accused was
concluded and the trial was also over the charge was completely
modified stipulating that on 17th April, 1996 at about noon time at
House No. U-12, Gali No.1, Arvind Mohalla, Ghonda she committed
murder with Israr, Jaffar (absconder) and Ashok (absconder). The plea
propounded on behalf of the defendant is that charge was modified with
the consent of the counsel for the appellant and the appellant admitted
that there was an error in the charge and it need to be amended and
that she would not be prejudiced by the same. The order dated 18th
August, 2001 passed regarding amendment of the charge and that no
prejudice would be caused to her is as under:-
Crl A. 836 of 2001 Page 60 of 68
“Present: Addl.PP for the State.
Accused Shakuntala on bail with Shri
Tyagi, Adv.
Accused Israr in JC with Shri S.K.Raizada Adv.
Heard in respect of error in charge framed against the
acc.Shakuntala. Both the Addl.PP & Defence counsel
submits that there is error & the error in the charge need to
be amended but none of them are prejudiced by the error
and none of them want to re-examine any of the witness
and also accused do not wish to lead DE. I have also seen
the case file. I agree with their submissions that neither the
acc. Is prejudiced nor any miscarriage of justice is caused
to her. Accordingly charge is amended & as per statement
at bar as above regarding re-examination of any witnesses
or examination of any DE, the case is fixed for final
arguments on 1.9.2001.”
70. Perusal of the said order reveals that it had been passed in a
mere mechanical manner. The learned Judge has not even discussed as
to what would be the impact of modification/amendment of the charge.
Though under Section 464 of the Criminal Procedure Code, it is
possible for the appellate or revisional Court to convict the accused for
an offence for which even no charge is framed, but even in such an
eventuality, the Court has to form an opinion that failure of justice
would not occasion. In order to judge whether failure of justice would
not occasion it would be relevant to examine whether the accused was
aware of the basic ingredients of the offence for which he is being
convicted and whether the main facts sought to be established against
him were explained to him clearly and whether he got a fair chance to
defend himself. In Willie (William) Slaney (Supra) it was rather held by
the Supreme Court that serious defect in the mode of conducting a
criminal trial cannot be justified or cured by the consent of the advocate
Crl A. 836 of 2001 Page 61 of 68
of the accused. In the circumstances, on the basis of the order dated
18th August, 2001 passed by the trial Court on the statement of the
counsel for the appellant that no prejudice shall be caused to her, if
there is prejudice caused the same could not be held to be that she
would not suffer any prejudice. The case of the prosecution till the
charge was amended was that she committed the murder on or before
18th April, 1996 near pond, near approach, road second pushta, Old
Village Usmanpur. Surprisingly when the statement of the appellant
was recorded under Section 313 of the Criminal Procedure Code on 9th
August, 1999 on the basis of charge framed on 5th April, 1997 this
aspect was not even put to her. After the charge was modified
stipulating that she murdered the deceased at her house on 17th April,
1986 along with others the statement of the appellant under Section
313 of the Criminal Procedure Code was not even recorded. Even if it is
accepted that no prejudice would have been caused to the appellant on
account of amendment in the charge and the appellant had agreed not
to lead the defence evidence and the prosecution had also agreed not to
lead any further prosecution evidence, in our opinion in the present
facts and circumstances it was incumbent upon the prosecution to put
the changed circumstances and the allegation against the appellant to
her in her statement under Section 313 of the Criminal Procedure Code.
Though it had already been put to her that on 17th June, 1996 the
deceased came to the house of the appellant with his brother Rakesh,
PW-11, and appellant made them sit in front gate at about 12 or 12.30
Crl A. 836 of 2001 Page 62 of 68
whereafter Rakesh, however left but it has not been put to her
categorically that, that was the last time the deceased was seen alive. It
also ought to have been put to the appellant that according to the post
mortem report,Ex. PW1/A deceased had died on 17th April, 1996 at
about 2 or 2.30 PM which is proximate to the time the deceased was
last seen with her. On account of modification of the charge the
prosecution ought to have categorically put this to the appellant and
not putting this, rather not examining the appellant under Section 313
of the Criminal Procedure Code after amendment of the charge would
reflect that the appellant who is an illiterate woman could not be aware
of the basic ingredients of the offence alleged against her on the basis of
circumstantial evidence that the deceased was last seen with her at
about 12 or 12.30 PM and according to the post mortem report he had
died at 2 or 2.30 PM on the same date and the last seen evidence of the
deceased is proximate to his death. The law contemplates that main
facts sought to be established must be explained to the accused clearly
so that he could get a fair chance to defend himself. In the
circumstances this Court is of the opinion that after the charge was
amended the appellant could not be aware of the basic ingredients of
the offence alleged against her and circumstantial evidence on the basis
of which she was being convicted and she did not get a fair chance to
defend herself. In Willie (William) Slaney (Supra) it was held that in
judging the question of prejudice, the fact that absence of charge, or
substantial mistake in it, is a serious lacunae which will naturally
Crl A. 836 of 2001 Page 63 of 68
operate to the benefit of the accused and if there is any reasonable and
substantial doubt that she was reasonably likely to have been, misled
such an accused would be entitled for benefit. In Ranvir Yadav (Supra)
the Supreme Court had held that even in a trial involving the most
gruesome and horrifying mass murder examination of an accused
under Section 313, is not an empty formality. In that case the
accusations against the accused were not specifically put to the
accused in his examination under Section 313 of the Criminal
Procedure Code and the Supreme Court had set aside the conviction of
the accused. In Ajay Singh (Supra) it was held that the questions must
be put in such a way so as to enable the accused to know what he has
to explain, what are the circumstances which are against him for which
the explanation is needed. The whole object of enacting Section 313 of
Criminal Procedure Code is that the attention of the accused should be
drawn to the specific points in the charge and in the evidence on which
the prosecution claims that the case is made out against the accused so
that he may be able to give such explanation as he desires to give. Till
the charge was amended what was put to her was that she murdered
the deceased in connivance with other on 18th April, 1996 near pond
and after amendment the allegations against her became that since she
was last seen with deceased in her house at 12-12.230 PM and as per
the post mortem report he died at about 2-2.30 PM therefore she must
have murdered him. In the circumstances, the inevitable inference in
the opinion of this Court is that the appellant was seriously prejudiced
Crl A. 836 of 2001 Page 64 of 68
in not explaining to her the circumstances after the amendment of the
charge of alleged murder allegedly committed by her in the statement
under Section 313 of the Criminal Procedure Code. No statement was
even recorded after the amendment of the charge after conclusion of the
entire trial and in the circumstances it will not be appropriate to convict
and sentence her.
71. There are reasons in the fact and circumstances that are weighty
and formidable to reject the prosecution version. The arrest of the
appellant from the bus station is doubtful. The Sub Inspector who is
alleged to have searched her had denied the same as she was only
concerned with receiving the rukka and for registering the FIR.
Recovery of the alleged keys of her own house from which the house
was opened pursuant to alleged disclosure statement will also not
inculpate the appellant in any manner. There are contradictions
regarding alleged recoveries pursuant to the disclosure statement, in
any case mere recoveries are very week evidence specially in the present
facts and circumstances so as to inculpate the appellant as basis or
motive is completely missing and is based on the prosecution‟s
surmises and conjectures which is without any evidence, alleging that
property was purchased by father of the deceased by raising the money
in his name. Neither the father, nor any person from whom the alleged
money was taken for paying the consideration of the house has been
produced nor any documents have been produced to show in any
Crl A. 836 of 2001 Page 65 of 68
manner that the house was purchased in the name of the deceased.
There is no evidence that the deceased married to the appellant in a
temple and she lived with him as his wife despite having a husband and
three children. The testimony of the brothers, relative witnesses cannot
be accepted in the present facts and circumstances in the absence of
any cogent deposition even by them as to how they formed an opinion
that the appellant was married to the deceased. No documents were
produced or even tried to be procured to show that property which was
allegedly purchased in the name of the deceased was transferred in the
name of the appellant. Rather the FIR 75/96 filed by the appellant
against the deceased reveals that the property is not in the name of the
appellant but in the name of her mother and if her statement is
accepted on the basis of which FIR under Section 506 of the Indian
Penal Code was registered against the deceased, it was he who had
threatened the appellant to give him the papers of the property which
was in the name of her mother. If the property was in the name of the
mother of the appellant, the prosecution should have made endeavours
to ascertain the same. There is just no evidence as to in whose name
the property was previously and in whose names the property was at
the time of alleged murder. Merely on the basis of bald statements of
the brothers of the deceased it cannot be inferred conclusively that the
prosecution version has been established beyond any reasonable doubt.
The motive of the crime, in the facts and circumstances, the
prosecution has utterly failed to establish and even the CFSL report
Crl A. 836 of 2001 Page 66 of 68
does not implicate the appellant as the recoveries are doubtful. Mere
alleged recovery of the human blood of group-B without any further
specification as blood group-B is very common, in the present facts and
circumstances will not implicate the appellant beyond reasonable
doubts. Also the alleged recoveries itself are doubted as the brother of
the deceased categorically states that the police authorities had gone to
the house of the appellant on 19th, April 1996 and made recoveries
when she was not present which was also stated by PW-15 that he had
deposited the recovered article on 18th April, 1996 in Malkhana. In light
of these major contradiction no reliance can be placed on the recoveries
as they are very suspicious in nature and cannot be construed to be a
mere slip of the tongue. The last seen theory by the brother PW-11 is
also unreliable, in the facts and circumstances and on the analysis of
the evidence on record in any case merely on the basis of the last seen
evidence, the appellant could not be implicated. The prosecution in the
circumstances has utterly failed to establish the complete chain of
events, as not to leave any reasonable ground being inconsistent with
the innocence of the accused. In the totality of the facts and
circumstances its not only that some of the important links in the chain
of circumstantial evidence are missing but in our opinion the entire
chain of events are missing. The trial Court‟s reliance on such weak
evidence which in the present facts and circumstances appears to have
been planted, is unsustainable and thus liable to be set aside.
Crl A. 836 of 2001 Page 67 of 68
72. Therefore, for the foregoing reasons the abovenoted appeal is
allowed and the conviction and sentence of the appellant in the
Sessions Case No.125/2000 State v. Shakuntala arising out of FIR
No.213/1996 Police Station Seelampur under Section 302/34 and
201/34 IPC is set aside and the appellant is acquitted of the charges
against her. The bail bond of the appellant pursuant to order dated
22nd May, 2009 in Crl.M No.919/2003 is discharged and sureties given
on her behalf are also released. Appellant shall be free unless required
in some other case. Copy of this order be also sent to the concerned
authorities.
ANIL KUMAR J.
March 25th , 2011. S.L.BHAYANA J.
„rs‟
Crl A. 836 of 2001 Page 68 of 68