- (1.) This appeal has been filed against the judgment and order dated 5.2.2009 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 862-DB of 2006, by which it has affirmed the judgment and order of the Sessions Court, by way of which and whereunder the appellant has been convicted for the offences punishable under Sections 302 and 404 of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC'), and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/-, and in default of payment of fine, to undergo further rigorous imprisonment for one year under Section 302 IPC; and was also sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/-, and in default of payment of fine, to undergo further rigorous imprisonment for three months under Section 404 IPC. However, both the substantive sentences have been ordered to run concurrently.
(2.) Facts and circumstances as per the prosecution in brief, are as under: A. Appellant got married to Sonia (since deceased), aged 30 years, in March 2003. It was an inter-caste marriage, and thus, was not approved of by Sonia's family members. They had both studied Pharmacy together. After passing the Pharmacy Course, Sonia (deceased) was appointed as a Lecturer in the B.S.A. Pharmacy College, Faridabad, and she was also working as a Warden in the Girls' hostel of the said Pharmacy College, situated in Kothi No. 783, Sector 21-A, Faridabad. The married life of the couple was not happy and they thus filed a Divorce Petition on the basis of mutual consent under Section 13-B of the Hindu Marriage Act, 1955 before the Family Court, Rohtak. The first motion was complete and the second motion had been fixed for 3.9.2004. B. On 2.9.2004, Sonia (deceased) sent a telephonic message to her mother, Smt. Dhanpati Devi (PW.3), stating that in the previous evening, the appellant Rohtash had come to meet her in the hostel at 8.00 P.M. and had told her that he would appear in the Family Court at Rohtak on 3.9.2004, to make his statement for getting the divorce. C. In view of the above, on 2.9.2004 at about 5.00 P.M., Sube Singh (PW.1), father of Sonia (deceased), came alongwith his nephew Wazir Singh to meet Sonia in her hostel at Faridabad. However, when they reached there, Ghanshyam (Security Guard), Arjun (Cook) and Bimla (Caretaker) of the hostel came and met them. Bimla (PW.8) (Caretaker) told them that on the same day at about 1.00 P.M., the appellant had come to the hostel to meet Sonia. Both of them had engaged in conversation for about one hour, while sitting in the verandah of the hostel and also had tea together. After the appellant had left the hostel, Bimla (PW.8) had gone to bathroom to wash clothes. Later on, when she had gone in search of Sonia (deceased), she had found her lying dead among the plants, in the gallery of the hostel. She had died of strangulation. D. Sube Singh (PW.1), had gone to the police station and lodged a complaint giving all the details, also stating that the appellant might have committed the said offence, as she had scratch marks on her neck, as well as on her breasts. E. In view of the complaint made by Sube Singh (PW.1), an FIR was registered (Ex.P-12). Necessary investigation was conducted, statements of witnesses were recorded, and the postmortem examination on the dead body of Sonia (deceased) was also performed. The appellant was arrested only on 8.9.2004. The articles collected from the place of occurrence and samples taken from the appellant, particularly, specimens of his hair etc., were sent to the Forensic Science Laboratory, Madhuban, for the preparation of an FSL report. After completion of the investigation, a chargesheet was filed against the appellant in court. F. After committal proceedings, charges were framed against the appellant under Sections 302 and 404 IPC. The prosecution examined 21 witnesses in support of its case, including the parents and relatives of the deceased, as well as Dr. Virender Yadav (PW.4), Ms. Anita Dahiya, the then Chief Judicial Magistrate, Faridabad (PW.17), Dr. O.P. Sethi, (PW.21), and SI Vinod Kumar (PW.20), the investigating officer. Some of the cited witnesses were given up, and a large number of documents etc., were filed. G. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973, (hereinafter referred to as 'the Cr.P.C.'), and all the incriminating material/circumstances were put to him one by one. He denied each allegation levelled against him by repeatedly stating, "It is incorrect." The appellant did not himself, adduce any evidence in defence. The learned Sessions Court, after appreciating all the evidence and the submissions made by the public prosecutor and the defence counsel, convicted and sentenced the appellant as has been referred to hereinabove. H. Aggrieved, the appellant preferred an Appeal before the High Court, which has been dismissed vide impugned judgment and order dated 5.2.2009. Hence, this appeal.
(3.) Dr. Sushil Balwada, learned counsel appearing on behalf of the appellant has submitted, that there was no eye-witness to the occurrence and that the prosecution had failed to prove and meet the parameters laid down by this Court for conviction in a case of circumstantial evidence. Even if there had been some discord in their marriage, they had agreed to separate mutually and the second motion of the Divorce Petition filed by mutual consent, had been fixed for next day i.e. 3.9.2004. Thus, there had been no occasion for the appellant to commit the offence. The material witnesses to the incident, particularly Ghanshyam and Arjun, who had been working as the Guard and Cook respectively in the Girls' hostel, and Mahender (Attendant) of the Taneja Guest House, where the appellant is alleged to have stayed under a fake name, have not been examined. The prosecution was under an obligation to examine each of them. The evidence of Jagatpal (PW.2), a hostile witness, could not have been considered at all. In light of the facts of this case, the theory of "last seen" together cannot be applied. Furthermore, the prosecution has created an entirely improbable story to the effect that after killing Sonia, the appellant had taken away her mobile phone, and had in the evening on the same day, telephoned his mother-in-law Dhanpati (PW.3), as well as several other relatives of Sonia, making an extra- judicial confession stating that he had killed Sonia, and that he would now himself commit suicide. The recovery of mobile phone from Itarsi (M.P.) cannot be relied upon, as this place is far away from Faridabad. There are material inconsistencies in the statements of the witnesses. The chain of circumstances is not complete. The prosecution must prove its case beyond reasonable doubt, and cannot take advantage of the weaknesses in the case of the defence. Thus, the appeal deserves to be allowed.;