1993 Supreme(Del) 724

High Court Of Delhi
DHANPAL DHANNU SUKHBIR SINGH - Appellant
Versus
STATE OF DELHI - Respondent
CRIMINAL APPEAL 18 of 1988
Decided On : 12/16/1993

Headnote:1. Criminal Law — (i) Indian Penal Code — Sections 302, 34, 201 — motive of accused — disclosure statement — CFSL Reports — fact of absconding of accused.

       (ii) Criminal Procedure Code, 1973 - Section 313 statement of accused, section 342.

       2. Indian Evidence Act, 1872 - Rule of Admissibility of Evidence — Section 27, statement of accused in Police custody — only that portion of statement admissible which leads to a specific discovery.

       One appeal is filed by SS, husband of deceased against his conviction for murder of his wife Bimla and daughter Seema.

       Second appeal has been filed by Dhannu alleged accomplice of SS, Prosecution has alleged that the deceased Bimla was subjected to crucity and harrasment by accused SS, who had been living with the widow of his brother in their family house and the deceased was forced to fend for herself and her children.

       Dismissing the appeal of husband and confirming his conviction and allowing the appeal of Dhannu and acquitting him of his charge, Court.

       Held:

       1. If the background of history of harassment, beating and criminal proceedings at the instance of the deceased is seen, it is not difficult to visualise that SS must have started considering the deceased as a thorn in his life, which should be removed somehow or other and as early as possible.

       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.

       There was a strong motive for SS to eliminate the deceased from his way so that he could comfortably live as husband with the widow of his brother. The beatings given to the deceased, the demand of money, giving of a buffalo to SS and the maintenance petition etc. are also deposed to by PWs 8 and 9, brothers of the deceased as also the fact that SS had compromised the matter and on his request the deceased was sent with him.

       It has come in evidence that the son of SS was living with Ram Phal PW 7 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.

       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, on a total appreciation of the oral and documentary evidence, Court is of the view that the prosecution has by cogent and convincing evidence proved that SS had a strong motive to remove the deceased from his life.

       2. Coming to the circumstance of disclosure statement and discovery of incriminating evidence in pursuance thereto.

       It was only this disclosure statement that led to the discovery of dead bodies.

       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 he facts and circumstances exclusive knowledge of SS about the place of concealment of dead bodies has to be inferred. 3. 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. The statement that, "she was held by her waist by DP" is not at all admissible as it does not lead to any discovery.

       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. From the reports of 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 the 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.

       5. "Mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind". There is no dispute with this aforestated 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 a useful piece of corroborative evidence, if there is other evidence to connect the accused with the crime. In the present case the evidence against SS does not comprise of only absconding but there is other evidence also.

       6. 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 be 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. Injuries upon the person of Dinu deceased were ante-mortem and caused by manual strangulation and were sufficient to cause death in the ordinary course of nature. Similar ante-mortem reddish bruisses were found on the neck of the child Seema and death due to asphyyia 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. The are incompatible with his innocence and exclude every reasonable hypothesis which may be consistent with his innocence.

       7. So far as DP is concerned, 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 by SS in point of time. thereforee this information was already with the police when a similar statement was allegedly made by DP. thereforee, from the statement of PW 9, it stands proved that the dead bodies were taken out from the bed of the river Yamuna at the pointing out of SS. The court has a strong suspicion in their 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. thereforee, suspicion howsoever strong being unable to replace the positive proof, court is 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.

       32. Criminal appeal No. 18/1988 of the appellant Dhanpal alias Dhannu is allowed and he is acquitted 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.