JUDGEMENT
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(1.)This appeal has been preferred against the impugned judgment and
order dated 1.4.2009, passed by the High Court of Punjab and
Haryana at Chandigarh in Criminal Appeal No. 399-DB of 2000, by
which it has affirmed the judgment and order dated 21.8.2000 passed
by the Sessions Judge, Ludhiana in Sessions Case No. 28 of 1996,
convicting the appellant under Sections 302 and 201 of the Indian
Penal Code, 1860 (hereinafter referred to as the 'IPC'), and
awarded him a sentence to undergo RI for life and to pay a fine of
Rs.2,000/- and in default of this, to undergo further RI for a
period of 3 months. The appellant has further been sentenced to
undergo RI for two years and to pay a fine of Rs.1,000/- and in
default of this, to undergo further RI for a period of 2 months
under Section 201 IPC. It has further been directed that the
sentences would run concurrently.
(2.)The facts and circumstances giving rise to this appeal are as
under:
A. The appellant got married to Dr. Loyalla Shagoufta, deceased, on
29.10.1993. Both of them being qualified doctors, were working in
the Christian Medical College (hereinafter referred to as 'CMC'),
Hospital Ludhiana. The relationship between the husband and wife
became strained and they have been living separately since June
1994.
B. As per the appellant, a petition for divorce by mutual consent was
filed on 20.2.1996, under Section 28 of the Special Marriage Act,
1954 in the Court of the District Judge, Ludhiana, and both parties
therein, appeared before the District Judge, Ludhiana on the first
motion of the case. However, they were asked to wait for the second
motion.
C. On 9.3.1996, the appellant handed over a set of blood stained
clothes to Dr. B. Pawar, the Medical Superintendent, (PW.1),
stating that when he came to his room that day, the same were
found therein. Dr. B. Pawar (PW.1), informed the police about the
said incident on the same date.
D. Dr. Loyalla Shagoufta, wife of the appellant, had informed her
mother Smt. Victoria Rani (PW.2), who was living in Jagadhari,
District Yamunanagar, by way of a telephone call on 6.3.1996, that
she would visit her on 8.3.1996. However, she did not reach
Jagadhari on 8.3.1996. Victoria Rani (PW.2), then came to Ludhiana
on 10.3.1996, and found that her daughter was missing. Smt.
Victoria Rani (PW.2) then lodged FIR No. 16 of 1996 on 10.3.1996,
at 9.40 p.m. wherein being the complainant, she expressed her
apprehension that the appellant herein, had abducted her daughter
with the intention of killing her.
E. In the meanwhile, Dr. Namrata Saran, one of the residents of the
hostel in which the deceased resided, also informed Dr. B. Pawar
(PW.1), Medical Superintendent that the deceased had in fact been
missing from the hostel since 9.3.1996. After an enquiry it came to
light that the deceased was on leave from 9.3.1996 to 16.3.1996.
F. Piara Singh, ASI (PW.13), took up the investigation of the case and
went to the appellant's hostel, however, his room No.2010, was
found to be locked. A police party searched for the appellant,
among several other places, in the house of Mr. Rana, one of his
relatives, but he could not be traced/found anywhere. Dr. B. Pawar
(PW.1) handed over the blood stained clothes given to him by the
appellant, to the I.O.
G. On 11.3.1996, Vir Rajinder Pal (PW.14), SHO, Police Station,
Ludhiana received a wireless message at 9.00 a.m., from the Police
Chowki at Lalton Kalan, which is about 20 k.m. away from the main
city, informing him that the dead body of a female had been found,
lying in the bushes, near the main road. The Investigating Officer
took Victoria Rani (PW.2) with him, while accompanied by other
police personnel, and recovered the body of the deceased from the
said place.
H. Immediately after the recovery of the dead body, Vir Rajinder Pal
(PW.14), visited the room of the appellant in the hostel and
conducted a thorough search of the same, in the presence of Dr. B.
Pawar (PW.1), Medical Superintendent.
I. The post-mortem of the deceased was conducted by a Medical Board
consisting of three doctors, including Dr. U.S. Sooch (PW.11), on
11.3.1996. He opined that the deceased had died by way of
strangulation and a corresponding ligature mark was found on her
neck. She also had several grievous injuries to her head.
J. On 11.3.1996, the Investigating Officer came to know, in the
course of interrogation that, the appellant had used the car of one
Dr. Pauli (CW.2), and that a blood stained mat was lying in the
dicky of the said car. The police hence took possession of the said
car and mat, and sent the mat for preparation of an FSL report.
K. The appellant was arrested on 11.3.1996, and his room in the
hostel was searched yet again, by one Ashok Kumar, Head Constable
from the Forensic Department, who scraped some blood stained earth
from the floor of the room. He also found a pair of blood stained
white V-shaped, Hawaii chappals. Photographs of the said room were
also taken. During interrogation, the appellant made a disclosure
statement on 13.3.1996 to the effect that he would be able to help
in the recovery of some relevant material from a place where he had
hidden it. The appellant then led the police party to a place
behind Old Jail, Ludhiana. From there, after removing some garbage
etc., one blood stained gunny bag, a blood stained dumb-bell and
one blood stained tie, were recovered.
L. The said recovered articles alongwith the clothes etc., found
on the body of the deceased at the time of the post-mortem, and the
blood stained clothes given by the appellant to Dr. B. Pawar
(PW.1), which were subsequently handed over to the Investigating
Officer, were sent for FSL report.
M. The FSL and serological report was then received, and it revealed
that, all the articles recovered by the police during
investigation, including the blood stained floor of his room, a
part of the Hawaii chappals, and the recovered tie, contained human
blood, with the sole exception of the mats found in the dicky of
the car. The blood stains herein, had dis-integrated and it was
therefore not possible to ascertain whether the same also contained
human blood.
N. The police completed the investigation of the case and submitted a
charge sheet against the appellant. The case was converted from one
under Section 364, to one under Sections 302 and 201 IPC. The
appellant was thus charged, but as he pleaded not guilty, he
claimed trial. The prosecution examined 15 witnesses and two court
witnesses were also examined under Section 311 of Criminal
Procedure Code, 1973 (hereinafter called as 'Cr.P.C.').
O. After the conclusion of the trial and appreciation of the evidence
in full, the learned Sessions Judge, vide judgment and order dated
21.8.2000 found the appellant guilty on both counts and hence
awarded him the aforementioned punishments.
P. Aggrieved, the appellant preferred Criminal Appeal No.399-DB of
2000 before the High Court, which was dismissed by the impugned
judgment and order dated 1.4.2009.
Hence, this appeal.
(3.)Mrs. Kanchan Kaur Dhodi, learned counsel appearing for the
appellant, submitted that the investigation was not conducted
fairly. She stated that the appellant herein, had no motive
whatsoever to commit the murder of his wife, and that they were
going to separate very soon, as both parties had filed an
application seeking divorce, by mutual consent. Further, no
recovery was made from the room of the appellant in the hostel,
rather the objects recovered had been planted. The appellant did
not make any disclosure statement. Thus, even the recovery made
from the place in close vicinity of the Old Jail, was not made in
accordance with law, as there was no independent witness with
respect to the said recoveries, and the recovery memo also, was
never signed by the appellant. It is therefore, a case of
circumstantial evidence. The courts below failed to appreciate that
the chain of circumstances is not complete. Hence, the appeal
deserves to be allowed.