Iqbal Singh v. Harinder & Ors.

(i) Last seen evidence - Shweta (PW-11);

(ii) Motive - Nirdosh @ Pintoo (PW-8), Shweta (PW-11), and Onkar Singh

(iii) Extrajudicial confession - Rqinder Singh (PW-3) and Manoj (PW-24);

(iv) Recovery of deceased's ATM card from Kavita and wrist watch from

11. We would deal with the circumstances one by one.

LAST SEEN EVIDENCE

12. Shweta (PW-11) (Accused Kavita's daughter) is the solitary witness produced by the prosecution to prove this circumstance. She deposed about the quarrel and beatings administered to Kavita, on 30.04.2005 and 01.05.2005. She also testified that her vincle Brij Pal questioned her as to whether her mother was having relations with Harinder (the Accused). She deposed that she was aware about the relations between her mother and Accused Harinder. Brij Pal was also in know of this fact yet he wanted to confirm the same from her and her brother Rahul. She deposed that on the night of 02.05.2005 at about 11:30 PM she woke up on hearing the sound of the doorbell. She saw Accused Harinder, Sanjeev and Sandeep (PO) coming up stairs. Harinder asked her mother to cook a meal. They all went to the room of Brij Pal. There was an altercation between them; she then went to sleep. She again woke up at about 2:30 AM on account of opening ofthe door (as the door used to create noise on opening). She saw Harinder coming up stairs but Sanjeev and Sandeep were not with him at that time. Thereafter she again went to sleep and got up in the morning. She testified that Brij Pal was not present in the house at that time. Her mother (Kavita) informed her that Brij Pal had left for his duty. She told her mother that there was no train for Puranpur in m t the morning. She deposed that Brij Pal never retumed thereafter. In the crossexamination she admitted that she had come to the Court along with her father Onkar Singh and her Taus (father's elder brothers) Iqbal Singh and Bhopal Singh and Phoofa Nirdosh Singh. She denied the suggestion that she was tutored by the above stated persons. She admitted that she did not give the physical appearance of accused Sandeep in her police statement. She deposed that she had stated in her statement to the 10 that her uncle Brij Pal had questioned her about the relations between her mother and Harinder. She deposed that she had stated to the 10 that she was aware about the relations between the two. She was confronted with her police statement Ex. PW-11/DA where these facts were not recorded. She admitted that her grandmother, her Tai (father's elder brother's wife) Sheela came to her house with her father, uncles and Phoofa. She showed her ignorance as up to what period they remained in the house. She stated that her uncle, father and Tau were not hked by her mother. She added that her Tau Iqbal Singhused to visit their house from May, 2005 to May, 2006 but her mother did not allow them (PW-11 and her brother) to meet Iqbal Singh. She admitted that in her school record her father's name was mentioned as Brij Pal Singh. She showed her ignorance ifthe police used to visit their house after 13.05.2005.

13. Shweta's statement under Section 161 Cr.P.C. was recorded only in May, 2006 i.e. more than a year after Brij Pal had gone missing. It was not only the police but all her relations including the ladies in the family who used to visit PW-11 Shweta. From the tenor of her statement made to the police and in the court it is evident that she suspected Harinder and Kavita's hand in Brij Pal's disappearance. Ifthat was so it was natural for her to have disclosedthese facts ifnot to the police but at least to her close relations including her grandmother and her Tai. Shweta's explanation that she did not disclose this fact as her mother did not allow her to meet the relations is not convincing because of the inordinate delay in recording this witness' statement under Section 161 Cr.P.C. makes her unworthy ofreliance. This assumes importance in view ofthe fact that Onkar Singh filed a Civil Suit as Shweta's and Rahul's next friends in respect of property No.B-14/639, Gali No.13, Subhash Mohalla, North Gonda, Delhi-110053. The Trial Court rightly disbelieved this circumstance. We see no good reason to disagree with the Trial Court on this count.

MOTIVE

14. The second circumstance attributed to the commission of murder was that though Kavita was staying with Brij Pal, but Brij Pal had not legally married Kavita in spite of her judicial separation with her previous husband Onkar Singh (PW-30). On this count the prosecution examined Onkar Singh (PW-30) and Nirdosh (PW-

8) both of whom testified that Brij Pal was ready to get married and a suitable girl was being searched for him. The Trial Court referred to the plaint of the Civil Suit Ex. PW-2/A. A Suit for permanent injunction was filed on Shweta's and Rahul's behalf wherein their father's name was mentioned as Brij Pal. Brij Pal at the time of his death was 38 years of age. According to the prosecution Kavita was residing with Brij Pal at least for the last 9 years. PW-30 Onkar Singh and PW-8 Nirdosh made vague averments about Brij Pal's proposed marriage against Kavita's wishes. Particulars of not even a single girl have been given by PW-30 and PW-8. Their testimonies do not inspire confidence. In our opinion this motive has not been established.

15. The prosecution wanted to prove that Kavita and Harinder were having illicit relations and, therefore, they wanted to get rid of Brij Pal. No evidence with regard to the alleged illicit intimacy was produced except a vague statement by Shweta (PW-11) that her mother had relations with Harinder. Since, Harinder was residing in a room in Brij Pal's house as a tenant, no inference of illicit relation can be drawn if Harinder visited Brij Pal's house and met his wife. PW-22 Anil (Brij Pal's colleague) deposed that he was posted with Brij Pal and that he never talked about the relationship between Kavita and Harinder. He deposed that he did not perceive anything which showed illicit relations between the two. In our opinion the prosecution has failed to adduce anyreliable evidence to estabhsh the illicit relations between Kavita and Harinder.

EXTRA JUDICIAL CONFESSION

16. The prosecution examined Sayyed Mohd. Umar (PW-6) to prove that Kavita sold her house No.122, Street Mala Devi School, Babarpur to this witness for a consideration of ? 6,25,000/-. Admittedly this house was in Kavita's name. Although in his examination-in-chief PW-6 testified that the sale consideration was paid to accused Harinder, in cross-examination he made a contradictory statement and deposed that he had paid an earnest money of ? 50,000/- and the entire sale consideration was paid to Kavita and she executed the documents as the owner ofthe house. The prosecution examined Rajinder Singh PW-3 to prove that Kavita wanted to sell a plot of land in Indrapuri, Loni and sought his assistance. He deposed that Brij Pal had met him on 01.05.2005. He (Brij Pal) stayed with him for about one and half hours. After 8-10 days, he was called by Kavita through someone. He went to her house at Babarpur, Delhi. Kavita and Harinder were present there. On enquiry Kavita told him that she wanted Kumharwala plot in Indrapuri, Loni to be tiansferred in her name. He questioned her as to how the plot could be tiansferred in her name and how would he answer Brij Pal in this regard. At that time according to this witness, "Kavita and Harinder retorted" by saying where from Brij Pal would come back. The witness deposed that while answaing there was smUe a on their faces.

17. In cross-examination the witness deposed that he visited Kavita's house only once when he had been called by her. He did not give the name of the person through whom he had been called by Kavita He was confronted with his previous statement Ex. PW-3/DA wherein he had not stated to the police that he was called by Kavita 8-10 days after Brij Pal went missing. In cross-examination this witness also admitted that Kumahar (seller of the plot to Brijpal) was not well acquainted with him. He just knew him In these circumstances, it is not understandable as to why Kavita would need PW-3's assistance in tiansfer of plot in her name. Statement of this witness was also recorded after one year of Brij Pal's going missing. We do not find testimony of PW-3 to be credible so as to place implicit rehance thereon.

18. Manqj PW-24 deposed that he purchased a plot measuring 120 Sq. yds. in Paramhans Vihar, Loni in the name of his wife Mvinni Devi. He constructed two rooms on the plot in the year 1998 and sold the same to Brij Pal. Brij Pal started residing there with Kavita and two children. During this period Brij Pal got a Govt. job. In the year 2005 Kavita and Harinder contacted him and wanted the plot to be transferred in her name. He questioned as to where Brij Pal was and she informed that Brij Pal was missing for the last one month. He dechned Kavita's proposal and told her that he had sold the plot to only Brij Pal and could not sell the same to her. They visited him again and they told him that Brij Pal will never return. This witness was confronted with the poUce statement Ex. PW-24/DA where the factum of non-retum of Brij Pal was not mentioned. He admitted that Kavita had filed a Civil Suit against him for getting the plot transferred in her name. It is home out from the record that Brij Pal's brothers including Kavita's previous husband Onkar Singh were interested in getting the property. A suit for perpetual injunction in the name oftheir two children as their next fnend was also filed by Onkar Singh against Kavita and others. It seems that Kavita also wanted to protect her interest and, therefore, filed a suit against Munni Devi (PW-24's wife) in the Civil Court at Ghaziabad. Though, the accused persons have denied having approached PW-24 Manoj for getting the plot transferred in Kavita's name. Even if it is beheved that Kavita wanted the plot at Loni to be transferred in her name, no inference of guilty mind could be drawn against her as she wanted to protect her and her children's financial interest as agamst the financial interest of her previous husband and brother-in-law. As stated earlier this witness made an improvement on the fact of Kavita stating that Brij Pal wiU never return and was confronted with his previous statement. It is well settled that extra judicial confession by its nature is a weak type of evidence. No extra judicial confession as to commission of offence was made by PW-3 or PW-24. Even if PW-3 and PW-24 are to be believed what can be inferred is that Kavita wanted to protect her financial interest. This circumstance is not proved by the prosecution.

RECOVERY OF INCRIMINATING MATERIAL

19. The prosecution relies on recoveries of deceased's ATM card from accused Kavita and wrist watch from accused Sandeep. The Trial Coiart held that accused Kavita and Brij Pal were residing together as husband and wife and the recovery of the ATM card from Kavita is not of any value. With regard to the alleged recovery of wrist watch at the behest of accused Sandeep, the Trial Court found the same to be not believable as the accused would not keep any incriminating article with him particularly when the same does not carry much value. The Trial Court referred to Nissar @ Pappu v. State, 1997 (40) DRJ (DB). The observation of the Trial Court is extracted hereunder; - ''In the present case the wrist watch which was allegedly recovered at the instance of accused Sandeep, was of not much value. It is also important to be noted that the recovery was effected after about one year of the alleged crime. It is also important to note that no independent witness was joined in the recovery of the wrist watch. Therefore, in view of the above discussedjudgments, the recovery ofWristwatch at the instance of accused Sandeep is doubtful As regards the recovery of ATM card f Brij Pal at the instance of accused Kavita is concerned, it is important to note that the accused Kavita and deceased Brij Pal were living under the same rooffrom where the recovery of ATM was effected. Therefore, the said recovery ofATMis natural"

20. We find no reason to disagree with the reasoning ofthe Trial Court.

21. The law is well settled that where the prosecution case rests on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must, in the first instance, be fully estabUshed; the circumstances should be of a conclusive nature; the circumstances taken together must unerringly point to the guUt of an accused; the circumstances proved on record must be incompatible with the innocence of an accused and form a complete chain of circumstances and it must be proved that in all probabilities the offence was committed by the accused. (Hanumant GovindNargundkar &Anr. v. State ofMadhya Pradesh, AIR 1952 SC 343 and Sharad Birdhichand Sarda v. State ofMaharashtra, (1984) 4 see 116).

22. The circumstances reUed on by the prosecution have not been fully estabhshed in the case exceptthe recovery of an ATM card, whichin our view is only a neutral circumstance.

23. The High Court is slow to interfere in an order of acquittal passed by the Trial Court. It interferes when there are compelhng and substantial reasons to do so. In this case we do not find any such ground so as to compel us to interfere with the order of acquittal. The Appeal is without any merit and the same is accordingly dismissed. (G.P. MITTAL) JUDGE (S. RAVINDRA BHAT)

JUDGE OCTOBER 10,2011 hs