R.L. Gupta, J.
(1) These two criminal appeal Nos. 18 and 25 of 1988 have been filed by Dhanpal alias Dhannu and Sukhbir Singh respectively (hereinafter described as Dp and SS) against their conviction under Section 302 and 201 read with Section 34 Ipc and sentence of life imprisonment under Section 302 read with Section 34 Indian Penal Code and sentence of four years and also a fine of 2,0001- each under Section 201/134 Indian Penal Code or in default of payment of fine further Rigorous Imprisonment of six months each by the learned Additional Sessions Judge, Delhi.
(2) Refinery and petroChemicals Limited and Others Construction Co.) on .1-2-1989 only stated that it had 'constructed over 300 cubic metre of brick masonry for the packing plant and D.G. Building totalling to 327.29 cubic metre during the month of June 1985'. These certificates, it is submitted, do not come up to the requirements of Para 1. We think that this criticism, based on the differences in wording as between the language of para 1 and the certificates produced by the Mcc (Mysore Construction Co.), is too weak to be accepted. It was for the Kpc Karnataka Power Corporation Limited) to consider the sufficiency of these certificates. The condition only required that the applicant should supply information to show that he had experience in insulation work and that he could carry out brick work in a month to the extent indicated. It was for the Kpc (Karnataka. Power Corporation Ltd.) to assess the value of the certificates furnished in this regard and if the Kpc (Karnataka Power Corporation Ltd.) considered there sufficient to warrant the issue of a tender form to the applicant, we do not think we should interfere with their decision.'
(3) Thus, while the requirement for supply tender documents in that case was that the party should have executed a certain magnitude of work, the certificate produced by the party complained against showed that it was executing works of that magnitude. The court said that the criticism, based on the differences 'in wording as between the language of para I of the eligibility conditions and the certificates produced by the party, was too weak to be accepted. 'This authority is clearly distinguishable and docs not help the respondents in the present case.
27.Because of the view which we have taken, only the petitioner would be left in the field. This was subject to comment by Dr. Singhvi who said that in case of tenders basic prejudice is that of exclusion and that over inclusion itself is not prejudicial or arbitrary and that in this case all the tenderers have been included and it is not a case of exclusion, and further that if B&R; goes out there would be monopoly, there being no competition, and it would be at the cost of Ihe public revenue. We find ourselves unable to agree with Dr. Singhvi. In the era of free economy which has been set about yet special advantage has been conferred upon public sector undertakings and one need not travel beyond that in the days of competitiveness. Here two parties, the petitioner and B&R;, competited, and the petitioner qualified for the award of tender. There appears to be no reason to deny the contract to the petitioner merely on the specious plea that only the petitioner would be left in the field.
2.The charge against them was that in the. night between 5-1-86 and 6-1-86 to 8-1-86, they in furtherance of their common intention committed the murder of Bimla wife of Sukhbir Singh, appellant and her daughter Seema at village Chilla within the jurisdiction of Police Station Kalyan Puri and caused disappearance of their dead bodies by throwing them in the river Yamuna with the intention to screen this from legal punisment.
3.The case of the prosecution in brief is that Ss was married to the deceased Bimla daughter of Ram Phal PW7 in 1975. Dp is the maternal uncle of SS. Ss used to beat Bimla for bringing insufficient dowry and on that account PW7 had filed a case against Ss in Patiala House Courts. Before the judgment in that case was delivered, Ss had given in writing to the court that in future he; would not misbehave with Bimla and would keep her properly. thereforee. PW7 sent his daughter Along with him. After that Ss extracted Rs. 3,000.00 from PW7 by holding out threats to him. Looking for a better future for his daughter, he gave that money to him. He, however, again started beating and mal-treating Bimla. PW7 then purchased a Buffalo for his daughter and also gave some money to Ss so that his daughter may live in peace. The deceased and Ss started living in a separate house in. village Chills itself. The house though belonging to the father of Ss was got repaired by PW7. Elder brother of Ss died and his father wanted Ss to live with the widow. Ss, according to prosecution, had, thereforee, started living in their other house in village Chilla where his parents and the widow lived. Thus in a way both the deceased, that is, Bimla and her 6 year old daughter Seema lived on their own in the other house, PW7 thus had been constrained to meet her house-hold expenses also.
(4) On 6 January 1986, PW7 went to village Chilla at about 10.00 Am to enquire about the welfare of the deceased. He came to know that Ss had given beating to her and that she had been missing since night. thereforee, in his report to the In-charge Police Post Patparganj, after narrating above facts, he further stated that he apprehended that Ss bad confined her and Seema at some secret place. He also learnt that during night Ss and three or four other persons had tried to break open the door of the house of the deceased. This report to the police is Ex. PW/A7 on the basis of which the FIR. copy of Ex. PW12/A was recorded at Police Station Kalyanpuri under Section 365 Indian Penal Code . Investigation was handed over to Si Gurdeep Singh on 6-1-86 and to Si Inder Singh on 7-1-86. After completion of investigation, challan was filed for the offences with which these two persons were charged, convicted and Sentenced as stated earlier.
(5) In support of its case the prosecution examined PW1 Dr. L. T. Ramani, PW2 Madan Lal, PW3 Ram Singh, both being professional divers, PW4 Islam, PW5 Hanif, PW6 Constable Inder Singh, PW7 Ram Phal, complainant and father of the deceased Bimla and grand father of Seema, PW8 Madan Lal, PW9 Partap Singh (both being brothers of the deceased and sons of Ram Phal). PW10 Head constable Kanwar Singh, PW11 Constable Bahadur Singh, PW12 Asi Himmat Ram, PW13 Si Devender Singh, PW14 Constable Shiv Kumar, PW15 Constable Surjit Singh. PW16 Asi Nand Kumar, PW17 Mr. Shiv Charan, Metropolitan Magistrate, PW18 Bhagwati, the sister of the mother of the deceased, PW19 Si Gurdeep Singh and PW20 Si Inder Singh, both being Investigating Officers in this case.
(6) There is no direct evidence regarding the commission of the murder of Bimla and Seema. The case is based on circumstantial evidence.
(7) Firstly, the prosecution relies on the disclosure statements of both the accused persons. Disclosure statement of Ss is Ex.PW8/C while that of Dp is Ex. PW8]D. Both these accused persons were arrested from near the house of Nepal in New Ashok Nagar, Delhi in the presence of Madan Lal PW8 and Pratap Singh PW9 by PW20 on 8 January 1986. The police searched, for them on earlier days in village Chilla but Ss was not available in his house or in the village. In his disclosure statement, Ss stated that he strangulated Bimla with his hands. She caught him by the hair of his head at that time. Immediately his daughter Seema who was asleep by her side woke up and started crying. He then gagged her mouth also because the was crying and Dp killed her by pressing her throat. They kept the dead body of Bimla in an empty gunny bag. tied its neck with a string and kept it on the carrier of a cycle. Dp wrapped the dead body of Seema in a sheet (Chader) and kept it on his shoulder. They carried the dead bodies towards river Yamuna. Near the field of Leela, he untied the neck of the gunny bag, poured some sand from the field of Leela into the gunny bag and tied its neck again. He then threw the gunny beg into the water of Yamuna while Dp threw the dead body of Seema in Yamuna. He further stated that he could point out and get the dead bodies of his wife and daughter recovered. Regarding hig cycle he said that he had kept it in his shop in Trilokpuri and could also get the same recovered. A similar disclosure statement Ex. PW8/D is attributed to DP. After recording their statements, accused led the police and the witnesses to river Yamuna near the filed of Leela. They are then stated to have pointed out the separate places where they had thrown the dead bodies in the river Spot pointing out memos Ex. PW8/E and PW8/F were prepared. The two professional divers Madan Lal and Ram Singh PW2 and 3 where called to the spot. They dived into the river and in the first instance brought out one gunny bag which was opened and was found to contain the dead body of Bimla. The witnesses PWs 8, 9, 19 and 20 have deposed that on opening of the gunny bag. sonic earth was found at the top layer over the body. Thereafter the divers again took a dive and brought out the dead body of Seema. From the Mutthi of the deceased Bimla, a few hair were taken into police possession. The recovery memo of the dead body of Bimla, earth, hair, gunny bag etc. is Ex. PW2/B, while that of Seema is Ex. PW2/A. Both these dead bodies were identified by the brothers of Bimla deceased who are PWs8 and 9. Photographs were taken by PW6, negatives of which are Ex. PW6/Al to As and positives are Ex. PW2/D&E; and PW6/Bl to B6. Accused Ss also led the police and the witnesses to his shop in Trilokpuri wherefrom he got recovered the cycle Ex, Pj which was taken into police possession vide Ex. PW8]H. Sample hair of both the accused were taken before Metropolitan Magistrate PW17 Mr. Shiv Charan by moving application Ex. PW17A and PW17B and taken into police possession vide Ex. PW20/F. The scaled parcels were sent to the office of CFSL and reports of the CFSL are Ex. PW20/G and PW20/H. The significant facts to be noted from the reports of the CFSL are that the bunch of few black and gray hair recovered from the Mutthi of the deceased Bimla were found to be similar in most of their morphological and microscopically characteristics with the specimen head hair of Ss and dissimilar to the hair of Dp and both the deceased. Further, the sample of earth recovered from the gunny bag was similar to the earth lifted from the field of Leela in respect of their general physical characteristics and density gradient distribution of particles.
(8) The prosecution also relies upon the circumstance that the accused had a strong motive to get rid of the deceased and her daughter, and that they were absconding immediately after the occurrence and not traceable. We will have occasion to deal with all the circumstances appearing and proved against the accused while dealing with the arguments advanced at the bar which we have heard at length.
(9) We will first deal with the case against appellant SS. His. learned counsel. Shri I. U. Khan has first contended that there was no motive for Ss to commit the murder of his wife and daughter because the prosecution evidence does not point out that be was a greedy person. In fact. the house in which, deceased Bimla lived separately from him was owned by his own father and not by PW7. In addition to that it is urged that father of Ss carried on dairy business, owned land and had another house in the village. This will, thereforee.. show that the family of Ss was quite affluent and he did not require any help from the father of the deceased. Prosecution evidence is also alleged to be comprising of highly interested witnesses who were close relations of the deceased and, thereforee, the court should scan their evidence thoroughly. On screening the evidence thoroughly, it is contended, it is found lacking in pointing out any motive for Ss to do away with his wife Bimla especially when he belonged to an affluent family. It is also urged that independent witnesses were available in this case but they were neither cited by the prosecution nor examined before the trial court. Then our attention was also drawn to the statement of PW2 Madan Lal, professional diver wherein he stated that the accused persons had not pointed out any spot in the river Yamuna in his presence. Since the dead bodies were not recovered from the river at the pointing out of the accused so it could not be said that the police had recovered the dead bodies at the instance of SS. If is also argued that the river Yamuna is an open place, accessible to all and sundry and as such discovery of the dead bodies from any such place does not point towards the guilt of SS.
(10) So far as the evidence on the question of motive for Ss to get rid of the deceased Bimla is concerned, our attention has been drawn to the statements of PWs 7. 8 and 9 by learned counsel for the State. PW7 has clearly deposed that after the marriage of deceased with Ss in 1975, they lived happily for some time, but then differences arose. Ss used to give beatings to her and also used to turn her out of the house. He used to ask the deceased to bring cash from him. He paid Rs. 3,000 after 3 or 4 years of the marriage to SS. He again paid Rs. 4,000 and then Rs. 1,000. Since Ss and his father used to give beatings to the deceased, he instituted a criminal case against both of them in Shahdara courts and also another case for maintenance and separate residence in Patiala Horse courts. Ss assured in those proceedings that he would not repeat his conduct in future and as such compromised the matter and took the deceased with him. Thereafter elder brother of Ss died. Father of Ss Along with Pardhan of the village came to him and disclosed his intention that the widow of SS's elder brother would live with Ss as his wife. Ram Phal fold them that that aspect could be considered later and not at that time. Then a demand of cash amount was raised by them and he paid Rs. 4,000. Then father of Ss called him and told him that he had separated Ss and the deceased and he should get a house constructed for them to enable them to live separately. He then got repaired the damaged house of Ss and housed them in that house. It was at that point of time that he purchased a buffalo also and handed over the same to SS. But Ss again started treating the deceased with cruelty for which the deceased lodged three or four reports with police against him. One of such reports is Ex. PW16/A lodged by the deceased on 31-12-1981. In this report she said that once Ss had been arrested by police of Pp Patparganj on her report and these days they had no concern or connection with him, and that maintenance proceedings were also going on against him. On that day she had come to visit the house of her relation Ram Rikh from whom she had to take some money. But he did not meet her. In the meanwhile Ss stopped her in the street, abused her and started beating her. She escaped from there and lodged this report. She did not receive any visible injury and, thereforee, did not want to be medically examined. The opening part of this report indicates that earlier also she had filed a report against Ss in which he was arrested. thereforee, Ex. PW16/A is really the second report. The third report is Ex. PW15/A proved by Constable Surjit Singh, PW15. It is dated 8-12-1985. Herein the deceased who had gone to the Pp with her father PW7 said that she was married to Ss and had two children from the wedlock, one of whom was a son and other a daughter. Her mother-in-law, sister-in-law and husband continued to pick up quarrel with her and she apprehended danger to her life and property from them and that she would file a maintenance petition against the husband. The above copies of the reports, thereforee, corroborate the statement of Ram Phal to the extent that the deceased was being tortured and harassed by .SS, her mother-ill-law and sister-in-law and further that she had been staying separately from Ss and other members' of his family. It is significant to note that within less than a month of this report, the poor, harassed, tortured and humiliated woman was no more in the mortal frame and even her innocent little daughter had to meet the fame fate. How prophetic in reality her intuition proved and from that circumstance alone it is possible to say how the shadow of death was hovering around her on account of her torture by Ss, his mother and sister etc. One cannot help remarking that only the wearer knows where the shoe pinches.
(11) Ram Phal then started that on the night between 5 and 6 January, 1986 at about 12 or 12.30, one Islam accompanied by another person came to his house and told him that a dispute was going on between deceased Bimla and Ss and if he wanted to see his daughter he should immediately rush to her house. Since it was a very cold night, he told them that he would be coming in the morning and so they went away. They had come in a three- wheeler scooter. It was in pursuance of this information that Ram Phal went to the house of the accused Along with his wife Asharfi. The deceased was not available .there. In this respect, it may be noted that PW4 Islam has denied if he visited the house of Ram Phal along with Hanif at the instance of the deceased. He was declared hostile and cross-examined. In cross-examination he denied having told the police that at about 10.30 P.M. on , deceased and come to his house and told her that she was being beaten by her husband and maternal uncle and that he Along with Hanif should go and' inform her parents. We are of the view that he was won over by the accused persons, otherwise we do not find any other circumstance from which we can infer that Ram Phal would have come to know about the ill-treatment of the deceased by Ss that night so that he thought it necessary to visit his daughter that morning. Same is our comment regarding the statement of Hanif PW5 in this respect. There was a definite suggestion to both of them that they had been won over by the accused. Islam is a tenant of Ss in a shop and the deceased must have known him. Islam himself admits that he knew the deceased.
(12) It is also significant to note that there is not a single question in cross examination of Ram Phal challenging his veracity on the point that he had filed a criminal complaint against Ss and his father or about the maintenance petition by the deceased or that Ss had compromised the claim in that petition by saying that he would behave in future and keep her properly. In fact, Ss
(13) The argument that independent witnesses were available and not produced by the prosecution does not seem to have much force. It is a matter of common knowledge that the people these days generally try to keep away from the disputes of others lest they are themselves involved. They do not want to risk their own safety. We have seen that Islam and Hanif PWs who could be called independent witnesses have gone hostile though their statements in the background of the natural conduct of Ram Phal of having gene to meet the deceased on the morning of 6 January. 1986 on information supplied by them goes to show that it is difficult to lay down that in ail circumstances the prosecution must lead some independent evidence. In fact, it depends upon the facts and circumstances of each case. It only casts a duty on the court to scan the evidence of such related or interested witnesses more carefully.
(14) Though there is a suggestion in cross-examination of Ram Phal that Ss neither gave any beatings to the deceased nor heated her with cruelty, there is no suggestion that Ram Phal and the deceased had not filed any criminal case and the maintenance case against Ss and his father or that Ss did not compromise those matters and also did not give any assurance that he will keep her properly in future and On that assurance he brought back the deceased. As already stated, the filing of maintenance case against the accused Ss by the deceased is even admitted by him in his statement under Section 313 Criminal Procedure Code . In answer to question No. 8 he has also admitted that case was dropped by mutual consent. This circumstance, thereforee, clearly shows that Ss and his father had been giving beatings to the deceased and depriving her and her children from proper maintenance. In answer to a question in cross-examination at page 55 of the paper book Ram Phal said, 'It is correct that my deceased daughter was living in the .house which was given after separation from the parents of the accused Sukhbir, but the accused Sukhbir used to reside with the widow of his elder brother at the house of his parents'. It is very easy to infer from this answer that the question put to the witness was that the deceased and Ss had started living in a separate house. The witness, however, stated that though the deceased was living separately in another house, Ss was living with the widow of his elder brother at the house of his parents. Ram Phal also stated in cross-examination that Ss and deceased had started living separately from other members of the family after about 9 or 10 years of their marriage. In these circumstances the argument of the learned counsel for Ss that he was living in Trilokpuri as said by him in his statement under Section 313 Cr. P. C., has no merit, it is simply an after thought because in crossexamination of none of the prosecution witnesses except PW9, there was a suggestion that he had been living in his shop in Trilokpuri. Reply of PW9 also was that Ss sometimes used to live in Trilokpuri and sometimes in village Chilla. It is quite natural for a businessman to stay at his shop sometimes when he gets delayed in work at night. But it cannot be equated with his permanent living at the shop. It was also contended that it was not possible for Ss to live with the widow of his elder brother as husband and wife in the presence of his own parents in that bouse. This argument also has no merit because Ram Phal has clearly deposed that a suggestion was put to him by father of Ss that he wanted Ss to live with the widow of his elder son as husband and wife. This snows that parent of Ss wanted him to live with the widow. The mother-in-law is specifically mentioned in the report Ex. PW15/A to be harassing the deceased and criminal case was filed against the father and Ss for beatings being given to the deceased. So the statement of Ram Phal is, corroborated by this evidence also, as well as ihe statements of PWs 8 and 9.
(15) Learned counsel for Ss then contended that no such story was given by Ram Phal either in his report to the police which is Ex. PW7/A or in his statement under Section 161 Criminal Procedure Code . which is Ex. PW7/B. thereforee, according to the learned counsel these were only after thoughts and the statement of Ram Phal suffers from embellishments. We have carefully considered these submissions and are of the view that at the time the report Ex. PW7/A or the statement Ex. PW7B were given by Ram Phal to the police, he was in a deeply shocked state of mind on account of the missing of his daughter and grand daughter and it was not possible for him to come out with all the facts regarding which he made his deposition in the Court. The Supreme Court in the case of Charan Siagh and others v. State of Punjab : 1974CriLJ1253 , 'The question of credibility of & witness has primarily t(.' be decided by referring .to his evidence and finding out as to how the witness has fared in cross-examination and what impression is created by his evidence taken in the context of the other facts of the case. Criminal cases cannot be put in a straitjacket. Though there may be similarity between the facts of some cases, there would always be shades of difference and quite often that difference may .prove to be crucial.' It has been pointed out that Ram Phal did not tell the police that Ss used to turn out the deceased from his house or that he used to send her to bring cash amount from him or that Ram Phal had paid a sum of Rs. 7,000.00 to Ss and so on. These are all matters of details and find corroboration from the absence of cross-examination on two material points which are that Ram Phal had filed a criminal case against Ss and his father regarding beatings given by them to the deceased as also the maintenance case filed by the deceased against Ss and he compromised both these matters, giving an assurance that he would behave properly in future. The harassment to the deceased by Ss is further substantiated from the two reports Ex. PW16/A and Ex. PW15/A lodged by the deceased in 1981 and 1985. We arc thus of the view that Ss must have felt that the deceased was actually a thorny obstruction in his relationship with the widow of his elder brother and unless he removed her from his path, he could not live peacefully.
(16) Learned counsel for Ss also contended that the deceased was separated from the. family not on account of any ill-will in the heart of Ss or his parents but rather in defense with the wishes of the deceased herself because every woman wanted to have separate home. It cannot be laid down as a general rule that every woman wants to live separately from her in-laws. If at all such a presumption could be raised, it will also be natural for that woman not to be compelled to live alone but to live with her husband. In this case it is the case of Ss himself that he was actually living in Trilokpuri which stand has been found to be false. Assuming for the sake of argument this fact to be true, we cannot help remarking that Ss had absolutely no love and affection for the deceased and their two small children. It has come in evidence that the son of Ss was living with Ram Phal PW7 at such a tender age. Ss thus intentionally deprived his wife and tender children from filial love and care which is so important in shaping the future of such small children. The deceased must be finding it an uphill task to explain to those tender souls as to what sin she or they had committed on account of which they had been abandoned by their father. Therefre, the voluptuous living of Ss with the widow of his deceased brother, must have been against the wishes of the deceased and it was quite natural that she must not have liked this conduct of SS. thereforee, it is not possible to accept the argument of the learned counsel for Ss that the deceased, was allowed to live separately according to her own wishes. Rather it must have been on account of the circumstances which have been deposed by Ram Phal i.e. that there were demands of more and more money from him, that the deceased was being beaten and was not being given any maintenance and so on. While keeping in mind the rule of law that in case the witnesses are close relations the Court should be on its guard to scrutinise their testimony, we are of the view that the testimonies of Ram Phal PW7 and his sons PWs 8 and 9 inspire full confidence in the facts and circumstances of the case, and they have unfolded prosecution case in a very natural manner. Considering the unfortunate situation in which the deceased was placed, it was only natural that she would confide her misfortunes either to her near and dear ones or approach the police to help her. On a total appreciation of the oral and documentary evidence, we are of the view that prosecution has by cogent and convincing evidence proved that Ss had a strong motive to remove the deceased from his life.
(17) Coming to the circumstance of disclosure statement and discovery of incriminating evidence in pursuance thereto, learned counsel for Ss contended that the dead bodies were actually not recovered at the instance of SS. In fact the police itself had discovered those dead bodies from river Yamuna and Ss has been falsely implicated in this respect. For that purpose learned counsel drew our attention to the statement of PW8 Madan Lal, a brother of the deceased in cross examination at page 66 of the paper book wherein he said that he had not signed any papers before the recovery of the dead bodies. Our attention was also drawn to the statement of PW2 Madan Lal, professional driver wherein he deposed that the accused persons had not pointed out any spot in the river Yamuna in his present. He even goes to the extent of saying in cross-examination by learned Pp after being declared hostile that he had not seen the accused persons at the spot on that date. Pws, the second professional diver Ram Singh also stated that when they took out the dead bodies from river, he did not see both the accused at the spot. He also declined to the suggestion of the Pp in has cross-examination if he had stated to the police that the accused had pointed out the spot wherefrom they had found the dead bodies. PW2 goes to the extent of saying that the dead bodies were not in any bag or cloth. PW3 also denied that suggestion. However, these statements are found absolutely wrong from the photograph taken, at the spot by PW6 Constable Inder Singh. The negatives are Ex. PW6/A-1 to 8 while the positives are Ex. PW2/D and E and Ex. PW6/B-l to 6. The positive photograph Ex. PW2/E shows a gunny bag and the dead body of the child. The photograph Ex. PW6/B-2 shows the empty gunny bag and dead body of Bimla lying near by. Even both these professional divers PW2 and PW3 are show taking out the gunny bag from the river Yamuna in Ex. PW6/B-6 and PW6/B-5. thereforee, the statements of PW8 and 9 that the dead body of Bimla was taken out from the gunny bag on the bank of the river Yamuna is found correct and substantiated from independent evidence while the statements of these two professional divers are found wrong, clearly indicating that these witnesses had been won over by the accused persons.
(18) Learned counsel for Ss also contended that if actually PW9 Partap Singh had been present at the spot at the time of the alleged recovery of the dead bodies from the river Yamuna, he would not have stated in his cross-examination that he did not remember whether he had signed the connected papers near the bank of the river Yamuna where the dead bodies were recovered or if the accused had signed certain papers either at the time of their arrest or near the bank of river Yamuna. or at any other place. We are of the view that such minor infirmity in the statement of PW9 does not detract from the veracity of his testimony for the reason that the recovery of dead bodies was made on 8-1-1986 while his statement was recorded on 14-7-1987 i.e. after a period of about 18 months. It is not possible to give an: absolutely accurate narration of events regarding such minor facts after laps of such a long time and such miner infirmities are rather natural. Moreover, one has. just to visualize the shock to which the mind of Public Witness 9 or even Public Witness 8 must have been exposed within such a short time of the recovery of the dead bodies of their sister and niece so that it is not possible for the mind to register the sequence of events correctly. Such infirmities are natural and in fact cannot be called infirmities.
(19) Learned counsel for Ss then contended that the alleged place of recovery i.e. river Yamuna was accessible to one and all and, thereforee, recovery from such an open place did not provide any connecting link between statement made by Ss and the crime. This argument also does not seem to have any merit. Dead bodies were not floating over the surface of water of river Yamuna. They were taken out from the bed of the river by the professional divers and as such the place, of recovery was neither accessible to one and all nor an open place. It was rather impossible for the police to discover the dead bodies of Bimla and Seema from the bed of river Yamuna without the information supplied by SS. It is also to be kept in mind that the discovery in pursuance to the information supplied by Ss was made within less than 3 days of the occurrence and in the facts and circumstances exclusive knowledge of Ss about the place of concealment of dead bodies has to be inferred. It was only this disclosure statement that led to the discovery of dead bodies. Without the statement of the accused it was not possible to discover the dead bodies.
(20) We have also the statements of both the Investigating Officers PWs 19 and 20 regarding the disclosure statement of Ss, pointing out the Spot of River Yamuna and the recovery of the dead bodies and we find no reasons as to why their testimony in that respect be not believed.
(21) The next circumstance relied upon by the prosecution is that a few hair were found stuck in each in the Mutthi of the deceased Bimla when her dead body was taken out from the gunny bag and those hair were also taken into police possession vide recovery memo Ex. PW2/B along with a sample of the earth, cotton dupatta and embroidered woollen shawl etc. The hair and the earth were converted into two separate parcels. The Investigating Officer applied to the Magistrate for taking the sample hair of both the accused vide applications Ex. PW17/A and B. The accused did not raise any objection and so sample hair were taken in the presence of the Magistrate Mr. Shiv Charan PW17. These sample hair and earth were sent to CFSL. The reports of the CFSL are Ex. PW20/G and PW20/H These reports indicate that the hair taken into police possession from, the Muthi of the deceased Bimla were similar to the hair of Ss in most of their morphological and microscopically characteristics and dissimilar to the hair of Dp or both the deceased. Also the sample of earth taken into police possession from the gunny bag was similar to the sample of earth lifted from the field of Leela in its general physical characteristics and density gradients distribution of particles.
(22) Learned counsel for Ss contended that it was highly improbable if any hair could be recovered from the Mutthi of the deceased Bimla when her dead body was taken out from. river Yamuna and it was simply a case of planting this piece of evidence against SS. In this context he further argued that the photographs of Mutthi were not taken which could point out the existence of any hair. Theaefore, the investigation has not been fair as police had already made up its mind that Ss was the killer and despite the fact that a number of people had collected at the spot, no independent witness was examined by the police. Our attention has been drawn to a statement of PW8 in cross-examination at page 66 wherein he stated that he could not say whether any public person had gathered at the place where the dead bodies were recovered because he was very much upset. It is not possible to say from this one sentence whether any such persons had collected at the spot before the proceedings of the police were conducted or whether they had collected after the proceedings. thereforee, not much advantage can be taken of this lone sentence of PW8 by the accused.
(23) Ss had also said in his disclosure statement that while he strangulated her, she was held by her waist by Dp and at that time she had caught him by the hair of his head and he murdered her by strangulating her hard. Only those portions of this statement will be admissible which lead to any specific discovery. Rest of the statement Will not be admissible. We will. discuss the portion, 'while he strangulated her' a little later. The statement that, 'she was held by her waist by DP' is not at all admissible as it does not lead to any discovery. Now the question is whether the discovery of hair from the Mutthi of the deceased Bimla. can be said to be in pursuance to the information supplied by Ss to the effect that at that time she had caught him by the hair of his head and so admissible in evidence u/s 27 Indian Evidence Act. Learned counsel for Ss contended that first of all it was highly improbable if the hair had actually been recovered from the Muthi of the deceased and these were in fact planted. Secondly he contends that the number of hair was so small and thereforee it was rather impossible to detect these few hair from the Mutthi of the deceased which was allegedly filled with earth. We have given our anxious consideration to this argument. It may be noted that in the inquest report Ex. PW20]B of deceased Bimla prepared by the I.O., there is column' 15 which enquires, 'Were there any foreign matters, such as weeds, straw etc. in the hair or clenched in the hand of the deceased, or attached' to part of the body ?' Against this column it is recorded, 'Earth is stuck in hair and hands.' On the same day, that is, 8-1-86, recovery memo Ex. PW2/B mentions regarding recovery of the few hair from the Mutthi of the deceased which were taken into police possession Along with earth and other articles like the clothes worn by the deceased. This recovery bears the initials of Dr. L. T. Ramani who conducted post mortem, showing thereby, that it was also sent to him Along with other documents on 9-1-86 while forwarding the dead bodies for post mortem examination thereforee, the discovery of few hair from the Mutthi of the deceased is independently corroborated' from the inquest report and recovery memo which were duly sent to the doctor conducting Post Mortem examination on the very next day. The sequence of events disclosed by the prosecution in fact does not permit us to lend any credence to the argument that these hair were planted by prosecution. It may be noted that if the prosecution actually wanted to falsely implicate Ss in this respect, it, could not have applied for taking sample hair of both the accused for purposes of comparing those hair with the hair recovered from the Mutthi of the deceased Bimla. The Investigating Officer also kept sample of the hair of the deceased Bimla and Seema and in fact all these sample hair Along with the hair recovered from the Mutthi of the deceased were sent to CFSL for examination. If the prosecution wanted to implicate Ss falsely, it would not have preserved sample hair of the Deceased Bimla as well as of Seema or that of both the accused persons. thereforee, quite fairly the investigating Officer wanted to eliminate the possibility of the hair found in the Mutthi of the deceased Bimla to be either of the accused persons or those of the two deceased. We are, thereforee, of the view that when from reports of the CFSL, it is established that the hair found in the Mutthi of the deceased Bimla are similar to the sample hair of Ss, it is very appropriate to say that those hair in the Mutthi of the deceased Bimla have been discovered in pursuance to the information supplied by Ss in his disclosure statement. Same is our answer with regard to the discovery of the earth from the gunny bag about which also Ss made a disclosure statement that they had filled earth in the gunny bag containing the dead body of Bimla from the field of Leela.
(24) Another information given by Ss in his disclosure statement is that the cycle on which they had carried the dead body of Bimla in the gunny bag to the river Yamuna had been kept by him in his shop in Trilokpuri and that he could get recovered the same by pointing it out. He then took the witnesses and police to his shop No. 271279, in Tirlokpuri wherefrom cycle No. 8M-56010 of Atlas make Ex. P1 parked inside the shop was pointed out by Ss and taken into police possession. 'The recovery memo in this respect Ex. PW8/H is duly signed by witnesses PWs 8 and 9, Madan Lal and Partap Singh and PWs 19 and 20 Si Gurdeep Singh and Si Inder Singh. All these witnesses have duly deposed about the pointing out of the shop and the cycle in it by Ss and its consequent seizure by the police.
(25) thereforee, the interrogation of Ss by PW20, the consequent disclosure statement made by him, the pointing out of the spot in river Yamuna by him as per disclosure Statement from where the dead bodies of Bimla and Seema were recovered and the recovery of the cycle from his shop are duly proved from the evidence of PWs 8, 9, 19 and 20. Learned counsel for Ss contended that despite the fact that some people had collected at the bank of 'the river Yamuna, no independent witness was joined by the police and this makes the entire evidence suspicious. Si Inder Singh in this respect has explained that non of such persons who had collected there was ready to join investigation. Learned Sessions Judge, in our view, has rightly observed that independent witnesses are always hesitant In joining police investigation especially in respect of an incident which takes place in their own village for the reason that they are subjected to searching cross-examination in and the dilatory procedure of, the Courts. It is a matter of common knowledge that the witnesses have to make a number of visits to the Courts to give their statements and adjournments in Courts are quite frequent for various reasons. Some time lawyers may be on strike while at others there may be a genuine difficulty in the availability of the defense counsel or even the Public Prosecutor. Above, all. witnesses these days are also scared because of their personal safely and many times it happens that the witnesses who have to depose in favor of the prosecution are chased by some undesirable elements in order to win them over or else there is risk to their life or property. thereforee, it is those persons who are closely related to a victim who would generally like to come forward to depose in a criminal trial. PWs 7, 8, 9 who are the father and brothers of the deceased Bimla have given a natural version in their statements and have very well stood the cross-examination and we do not find any material circumstances on account of which their testimony may be found wanting.
(26) The Supreme Court has ruled in the case of State of U.P. v. Iftikhar Khan and others : 1973CriLJ636 , 'Merely because the witnesses are partisan or interested, their evidence is not liable to be rejected. Court must be careful in weighing their evidence.' Similarly in the case of Ram Ashrit and others v. state of Bihar 1981 Crl.L.J 484, Supreme Court again ruled, 'Where all the material witnesses in a murder case were either related or otherwise interested in the prosecution, their testimony had to pass the test of close and sever scrutiny before their testimony could be safely acted upon.' Besides the testimonies of PWs 7, 8 and 9 being natural, there was no suggestion to them in cross-examination on behalf of Ss that they had any enmity or other reason to falsely implicate him, In the case of State of Punjab v. Ramji Das : 1977CriLJ705 , the Supreme Court observed, 'Relationship of the prosecution witness with the deceased is no ground of disbelieving him. Being such a close relation, he would have no reason for leaving out the real assailant of his brother and implicating the accused falsely. Moreover, where there was not even a suggestion, in the court of Committing Magistrate or in the trial Court, that he had any enmity or other reason, to falsely implicate the accused, his statement could not be viewed with suspicion merely because of his relationship with the deceased.' In view of the aforesaid authorities. it is not possible for us to discard the statements of PWs 7, 8 and 9 merely on the ground of their relationship with the deceased. They were the best persons in the faces and circumstances of the case to know the truth from the deceased.
(27) From the reports of the CFSL which are Ex. PW/20/G and Ex.PW20/H, it is proved that the hair recovered from the Mutthi of the deceased Bimla are similar to the hair of Ss and dis-similar to the hair of the Dp or that of the deceased Bimla and Seema. thereforee, the disclosure statement of Ss that deceased Bimla had caught him by hair of his head at the time of the incident is substantiated by the recovery of his hair from her MUTTHI. So, it stands proved from the prosecution evidence that Ss made a disclosure statement Ex. PW8/C in pursuance to which he pointed out the spot in river Yamuna where from the dead bodies of Bimla and Seema were recovered. It also stands proved that the dead. body of Bimla was taken on the cycle with was disclosed by Ss to be lying at his shop and taken into police possession vide recovery Memo Ex PW8/ Hon 8-1-1986 itself. Similarly of the earth recovered from the gunny bag with the earth taken in police possession from the field of Leela is also proved by CFSL report, and is a fact discovered on information supplied by SS.
(28) The last circumstance which has been relied upon. by the prosecution is that immediately after the occurrence both the accused were absconding and were not traceable. In this respect the evidence. examined by the prosecution comprises of PWs 7, 8, 9, 19 and 20. Ram Phal PW7 on receipt of information had gone to village Chilla on the morning of 6-1-1986. He found that neither the deceased Bimla .nor Seema nor Ss were present in the house. He tried to make enquiry from the nearby places, but no one was available. The buffalo was tethered inside the house. Since be did not find any of them there, he went to Police Post Patparganj and lodged the report Ex. PW7/A. He searched for his daughter at the house of his relations, but in vain. She had also not come to his house in Kotla Mubarakpur when he returned in the evening. On 7-1-1986 he again went to Police Post Patparganj and told the police that Bimla was not traceable. He repealed his visit to Village Chilla on 8-1-1986 where he met the police. His sons Pws 7 and 8 were also with the police at that time. PW8 Madan Lal also deposed about the information received by his father daring the night of 5-1-1986 from two persons, the visit of his parents to the house of Bimla on the morning of 6-1-1986, non-availability of Bimla at her house in village Chilla, lodging of the report by his father on 6-1-1986 making search for her by them all, his visit Along with his brother PW9 to the house of Bimla on 8-1-1986, .the arrival of the .police at that time in pursuance to the report of his father, absence of Ss from the house all these days, gathering of the crowd, somebody from the crowd disclosing that Ss would be available at the house of Nepal Singh in New Ashok Nagar, the consequent arrest of Ss and Dp from near the house of Nepal Singh and so on. This statement has been corroborated by his brother PW9 as also by police officer PW19 regarding the non-availability of the accused Ss, deceased Bimla and deceased Seema in their house in village Chilla. He has particularly deposed that during the night of 6 and 7 January, 1986, the accused persons were not traceable In the village The investigation was entrusted in PW20 on 7-1-1986. He also deposed that they searched for the accused persons on that day but they were not traceable. It was only on 8-1-1986 when he could not locate the accused in village Chilla that at the instance of her brothers PWs 8 and 9, he arrested them from near the house of Nepal Singh in New Ashok Nagar.
(29) Learned counsel for Ss contended that Ss resided in Trilokpuri and and not in village Chilla and he was arrested from Trilokpuri actually and not as deposed by the prosecution witnesses. However, on the strength of the prosecution evidence, we are not able to persuade ourselves to believe that Ss either resided in Trilokpuri or that he was arrested from Trilokpuri. In answer to a question, PW7 in cross-examination states that though the deceased after separation from the parents of Ss was residing in a separate house in village Chilla itself, Ss resided with the widow of his elder brother at the house of his parents and that this conduct of Ss was not approved by them. At that stage no suggestion was given to PW7 that Ss actually resided in Trilokpuri. A suggestion was given in the crossexamination of PW9 only that Ss had taken a separate ration card at his address of Trilokpuri. thereforee, till that point of time, i.e. during the cross examination of PWs 7 and 8, there was no suggestion on behalf of Ss that he had been residing at Trilokpuri, According to the suggestion given to PW9 if actually a separate ration card had been taken by Ss at the address of Trilokpuri, it was bound to be produced in defense evidence when actually defense witnesses had been examined on this point. DW1, a Homeopath practicing in Trilokpuri deposed that Ss was residing in Trilokpuri for the last about 6 to 7 years. If that were so, there is no reason, why any ration card of that address has not been forthcoming, though the same was obtained. PW4 Islam, a hostile witness for the prosecution deposed that he had taken the step of Ss on rent where he was running a hair cutting saloon. He docs not clarify whether this shop is situated in village Chilla or at Trilukpuri. He further says that he had been visiting the house of Ss and since he is a resident of village Chilla, it will have to be presumed that he refers to the house of Ss in village Chilla. thereforee, even from the statement of these hostile witness it can be inferred that Ss was residing in village Chilla and he had been absent from that village immediately after the occurrence and could be arrested only on 8-1-1986 from near the house of Nepal Singh in New Ashok Nagar. According to DW2, the deceased did not bear good moral character and she used to be missing from her house for two to four days at a time. He further deposed that different type of people used to visit her. PW4 Islam, who turned hostile to prosecution, was also made to say in cross-examination that the wife of Ss, that is, the deceased used to go from his house quite often and remain absent from his house for days together. DW2 in crossexamination further stated that they did not object to the visit of such people to the house of the deceased and he did not lodge any report with the police. He further stated that Ss also did not lodge any such report with the police. Now these statements of the afore- said witnesses are very telling. If, in fact, any such undesirable people had been visiting the deceased, it is impossible to believe that her such unbecoming conduct would have gone un-noticed in a village where people are generally orthodox and such things spread like wildfire. So such aspersions on the character of the. deceased are simply figments of imagination and patently false. The second significant thing in the statement of DW2 is the use of the words, 'His house' while referring to the missing of deceased and no-reporting to police by Ss also. So it goes to show that this fact was also within the knowledge of Ss and despite that he did not lodge any report. So, Ss could not have known about this fact if he had been living in Trilokpuri and by necessary inference Ss was living in village Chilla itself. Since he admittedly did not live with the deceased, he must be living with his parents and the widow of his elder brother. Ss himself says in answer to the last question u/s 313 Criminal Procedure Code . that the deceased had a quarrel with him because he used to look after the wife of his elder brother and children and so the deceased started living separately. It was quite natural for the deceased to be annoyed with Ss when he started giving preference to the widow and children of his brother in comparison to his own wife and children. The absence of deceased from the village could come to his knowledge only if he was residing in village Chilla. The very fact that Ss did not lodge any report about such visits of un-desirable persons to the house of the deceased would go to show that the defense version is false. Otherwise neither the husband nor the neighbourers in the village would tolerate such immoral conduct of a lady living alone. It is significant that DW2 does not even say that Ss was residing in Trilokpuri. He only says that the deceased Along with her children was residing in a separate house and Ss was not residing with her for the last 5-6 years. He could have further deposed if it was a fact, that Ss was residing in Trilokpuri and not in the village. thereforee, the prosecution has been able to prove that Ss had absconded from the village immediately after the occurrence and could be arrested city on 8-1-1986, i.e., after 3 days. Learned counsel for Ss drew our attention to some authorities on the circumstances of absconding. So far as the authority in the cane of Shamu Balu Chaugule v. State of Maharashtra : 1976CriLJ492 is concerned. It has no application to the fact? of the present case because in that case the accused was not questioned under Section 342 Cr.P.C. about his absconding. In the present case specifically question No. 16 was put to the effect, 'when the police party Along with witnesses went to the village, he was not available in his house'. He then drew our attention to the case of Matru alias Girish Chandra v. The State of U.P. Air 1971 Sc 1050 wherein it was laid down, 'Mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind.' There is no dispute with this legal proposition also because if that is the only circumstance against an accused. It may not be conclusive to fasten criminal liability upon him. Absconding is actually useful piece of corroborative evidence, if there is other evidence to connect the accused with the crime. AIR 1969 Sc 1198 in the present case the evidence against Ss does not comprise of only absconding but there is other evidence also.
(30) Summing up the entire evidence so far as Ss is. concerned, the prosecution has been able to prove that he had a motive to commit murder of Bimla and Seema, that after arrest on interrogation he made a disclosure statement in pursuance to which he pointed out the dead bodies of Bimla and Seema in river Yamuna and which were taken into police possession vide recovery memos, that a few hair recovered from the Mutthi of the deceased Bimla were similar to the hair of Ss and that immediately after the occurrence he had been absconding and could be arrested only after 3 days. Cause of death by throttling is proved by PW1 Dr. L. T. Ramani. He found reddish bruise mark 1'x3/4' on the under surface of chin, left side of mid line on the person of deceased Bimla and similar bruise over the corresponding site on the right side mandibular border, forming a 'V'. These two bruises were joining each other in the mid line just above the thyroid cartilage. Injuries upon the person of Bimla deceased were antemortem and caused by manual strangulation and we're sufficient to cause death in the ordinary course of nature. Similarly ante-mortem, reddish bruises were found on the neck of the child Seema and death due to asphyxia resulting from throttling (Manual strangulation). The cause of death by strangulation of both as opined by the Doctor is also relatable to information supplied by Ss in his disclosure statement to the effect that he strangulated her with his hands. The cumulative effect of all the above proved circumstances is that they irresistibly and unmistakenly lead to the only conclusion that Ss had committed the murder of his wife Bimla and his daughter Seema by strangulating them with a manual process and thereafter in order to screen his crime threw their dead bodies in river Yamuna. They are incompatible with his innocence and exclude every reasonable hypothesis which may be consistent with his innocence.
(31) So far as Dp is concerned, his case rests on an entirely different footing. Even the learned Additional Sessions Judge has observed in para 31 of the judgment that the prosecution was not able to prove any specific motive at the back of Dp or that he ever suggested to Ss to do away with Bimla and her daughter. Even the disclosure statement made by this co-accused stands on a different footing. The disclosure statement regarding throwing of the dead bodies of Bimla and Seema had been made earlier than Ss in point of time. thereforee, this information was already with the police when a similar statement was allegedly made by DP. PW9 Partap Singh also deposed in examination-in-chief that after the recording of the disclosure statement both the accused had taken the police party to river Yamuna and then one of the divers brought from the bed of the river one gunny bag, pointed out by SS. Then the other diver took a dive in river Yamuna near the spot pointed out by Ss and brought out the dead body of Seema, daughter of Bimla. Thereafter, from the statement of PW9, it stands proved that the dead bodies were taken out from the bed of the river Yamuna at the pointing out of SS. We have a strong suspicion in our mind about complicity of Dp in the commission of this. ghastly crime of double murder, but since it was at the pointing out of Ss in the first instance that both the dead bodies were taken out, we find it difficult to hold that the pointing out could also be attributed to DP. It would have been quite different if one dead body was pointed out by Ss and the other by DP. thereforee, suspicion, however strong being unable to replace the positive proof, we are of the view that the pointing out in this case of both the dead bodies and their consequent recovery is at the instance of Ss and may not be at the instance of DP. No recovery of any hair belonging to this co-accused from Mutthi of the deceased Bimla has been made. Also prosecution evidence is silent if any search was made about this co-accused in Vishnu Garden which is his normal place of residence and simply the circumstance of his being found present in the company of Ss near the house of Nepal Singh in New Ashok Nagar may not be deemed a circumstance equivalent to his absconding. Ss is his sister's son and it is quite possible that Dp was trying to give solace to Ss who must be having a heavy burden of guilt on his conscience after committing the murder of his wife and daughter.
(32) In view of the above discussions, thereforee, we accept the criminal appeal No. 1811988 of the appellant Dhanpal alias Dhannu and acquit him of the charges framed against him. Criminal Appeal No. 25/88 of the appellant Sukhbir Singh, however, is dismissed and his conviction and sentence as awarded by the learned Addl. Sessions Judge are maintained. The bail bond of Dhanpal alias Dhannu is hereby discharged. The appellant Sukhbir Singh will surrender forthwith or else his arrest be secured by issue of nonbailable warrants to undergo the sentence awarded to him.