State through C.B.I Vs
Mahender Singh Dahiya
JUDGMENT
SURINDER SINGH
NIJJAR, J.
1.
This
appeal is directed against the final order of the High Court of Delhi dated
19th December, 2002 passed in Criminal Appeal No. 169 of 1999, whereby the
accused Dr. Mahender Singh Dahiya has been acquitted of the charges under
Sections 302 and 201, Indian Penal Code (for short `IPC') by setting aside the
judgment of the trial court whereby he had been convicted under Sections 302
and 201 IPC and sentenced to imprisonment for life and fine of Rs.5,000/- for
the offence under Section 302 IPC and also imprisonment for seven years and
fine of Rs.5,000/- for offence under Section 201 IPC.
2.
Before
the trial court, the prosecution had succeeded in proving that Dr. Mahender
Singh Dahiya (hereinafter referred to as `the respondent') had committed the
murder of his wife Namita, a British national of Indian origin, on the
intervening night of 27th/28th May, 1979. The murder was allegedly committed on
the very first night of the honeymoon in room No. 415, Hotel Arenberg, Brussels,
Belgium. It is further the case of the prosecution that after committing the
murder, the respondent had dismembered and extensively mutilated the body of
the victim. He subsequently disposed of the body parts at different places in
the city of Brussels. This was done with the intention of destroying the
evidence of the murder.
3.
The
aforesaid conviction and sentence were challenged before the Delhi High Court
by way of an appeal. The High Court upon re-appraisal of the entire evidence
accepted the appeal and acquitted the respondent of both the charges. Aggrieved
by the aforesaid judgment of the High Court, the State through CBI, New Delhi
is in appeal before this Court.
4.
The
High Court notices at the very outset of the impugned judgment that this is an
unusual case and perhaps the first of its kind. We are of the opinion that the
High Court had good reasons for making such a statement. The peculiarity which makes
this murder case rather rare is not only the ghastly and the brutal manner in
which the offence is alleged to have been committed but also the complexities
created by a number of unique factors. The accused respondent herein is an
Indian. He is an Orthopedic Surgeon. The alleged victim of the crime Namita,
though of Indian origin was a British citizen. She had grown up in England
since she was 5 or 6 years old. The offence was allegedly committed in a third country,
i.e., Belgium. Consequently, the investigation of the case was conducted in
three different countries. Initially, the Belgium authorities investigated the crime.
Thereafter, the Scotland Yard in London also participated in the investigation.
It was concluded in India. The investigation in Belgium and U.K. had been
conducted according to the law and procedure of those countries. This led to
its own difficulties. Initially, the Belgium authorities had requested for extradition
of the respondent for his trial in Belgium. Later, the request was abandoned by
the Belgium authorities. The case was ultimately investigated by the CBI and
the charge sheet was presented on 30th July, 1985. At the trial, a large number
of witnesses being foreign nationals were examined on commission either in
Belgium or in England. This further complicated the issues. Ultimately, the
trial court convicted the respondent on 1st March, 1999, i.e., twenty years
after the alleged commission of the crime.
5.
We
may now notice some of the undisputed facts, which are necessary for
appreciation of a peculiar situation in which the alleged offence is said to
have been committed. The respondent belongs to a village called Turkpur,
District Sonepat, Haryana. He obtained his MBBS degree from Punjab University, Rohtak
in 1973 and M.S. Degree in (Orthopedic) from A.I.I.M.S., New Delhi in December,
1978. He got himself registered with the Punjab Medical Council.
6.
Jagdish
Singh Lochab (PW-48) a native of Punjab had migrated to England in 1962. He was
settled there with his family viz. wife Smt. Chandermukhi (PWUK-1), three
daughters namely Namita, Amita Lochab (PWUK-2) and Shiela (PWUK-3) and two sons.
Namita born in India in May, 1956 had acquired British citizenship. During
1978, Namita was working as accounts trainee with the British Broadcasting
Corporation (BBC), London. In July- August, 1978, Jagdish Singh Lochab (PW-48)
visited India to find suitable boy for marriage with his daughter Namita. They
found the respondent to be a suitable match for their daughter. After making the
selection of the proposed groom, Namita was called from London. The engagement
ceremony was held between the respondent and Namita on 31st August, 1978 at
village Turkpur followed by a marriage ceremony according to Hindu rites and customs
at Delhi on 5th September, 1978. However, as per the understanding of the
parents of Namita, the said marriage was to be treated as engagement only as
there would have to be a registered marriage in London subsequently. Therefore,
the marriage was not consummated and Namita along with her parents returned to
London on the night of 5th September, 1978.
7.
As
arranged, the respondent reached London on 27th February, 1979. He started
living with his in-laws at 22, Friars Way, Action, W3, London. At the same
time, he pursued his medical studies. He got himself registered as a post graduate
student at Royal National Institute of Orthopedics, London on 12th March, 1979.
Jagdish Singh Lochab (PW-48) purchased a house (No. 312, Horn Lane Act, London)
in the joint name of Namita and respondent valued 20,000 UK Pounds. He paid
10,000 UK Pounds, the remaining price was to be paid in installments. A joint
bank account No.91053728 was also opened in the name of Namita and the respondent
at Midland Bank, Acton High Street, London and two cheque books, one each in
the name of Namita and the respondent were issued by the bank.
8.
On
5th or 6th April, 1979, 18th birthday party of Sheila, younger sister of Namita
was celebrated where all the friends (boys & girls) of the three daughters
of PW-48 including UK-23 Philips David Abbey, a colleague of Namita were
invited in the party. Mr. and Mrs. Lochab left the house at about 7.30 pm and
returned at about 1.30 a.m. in the morning. On their return the accused started
abusing the whole family, he was aggressive and alleged Namita to be
characterless, as she had been dancing and mixing with boys. Namita was upset with
the behaviour of the accused and was crying. She told her mother that it did
not seem possible for her to spend the rest of her life with the accused. The
next morning the whole family sat together along with the accused and discussed
about the incident of the previous night. When the accused was told that Namita
wants to cancel the engagement, he apologized for his conduct in the previous
night. During the night of 10th April,1979 at 1.30 a.m. Namita wrote a letter
(exhibit CW-13,Volume-9, page 286) to the accused addressing him as Mahendra,
suggesting that wedding should be cancelled in the month of May, until both of
them were ready for the same. She advised him to get some self confidence to
prove himself responsible enough to look after a wife and a home. In reply, the
accused wrote a letter, to Namita addressing her as Nita, which is exhibit
CW-14 (Vol.9, page 290).
9.
On
26th May. 1979, the marriage between Mahender and Namita was registered at the
Office of the Registrar of Marriages, London. It was followed by a reception the
same evening at the Phoenix Restaurant, London. A honeymoon trip for the newly
wedded couple was arranged for five days commencing from 27th May, 1979 to certain
European countries through Cosmos Tours, London. In the morning of 27th May,
1979, Mahender and Namita left for the honeymoon trip. They were seen off by
her family at Victoria Railway Station, London. They carried two suit cases,
one of red colour belonging to Namita and the other of brown colour belonging
to Mahender containing their clothes and other articles. The group of tourists
including Namita and the respondent reached Brussels at about 6.30 p.m. the
same evening. All the tourists in the group stayed at the fourth floor of Hotel
Arenberg, Brussels. Mahender and Namita checked into room no. 415. After some time
they went for a short sight seeing tour `Brussels by Night'. They returned to
the hotel at about 11.00 p.m. and retired to their room.
10.
Hereafter,
there are two versions, one according to the appellant and another according to
the respondent. The prosecution version is that the respondent had strangled
his wife Namita to death in their hotel room. He had then proceeded to dismember
and mutilate parts of her body which were subsequently disposed of in the
rubbish container and the lake. The respondent entered UK on the same day,
i.e., 29th May, 1979 and withdrew an amount of 200 UK Pounds from the joint account
he had with his wife bearing Account No. 91053728 from the Midland Bank,
London. In the afternoon of 30th May, 1979, after withdrawing the money from
the bank, he went to the house of his in-laws. He was carrying two suitcases. He,
however, could not give any satisfactory explanation to his in-laws about the whereabouts
of his wife Namita. He rather falsely stated to them that she had abandoned him
at Brussels on the morning of 28th May, 1979, carrying away her clothes and
money. The respondent wanted to get away from the house as soon as possible
without giving any explanation as to what happened in Brussels. He was,
however, restrained by the family members with the assistance of a neighbour. Thereafter,
Namita's father Jagdish Singh Lochab (PW-48) took the respondent to Acton police
station to lodge a missing person's report about the disappearance of Namita.
On the way back from the police station along with his father-in-law, the
respondent escaped by jumping onto a running bus. Thereafter, he stayed in the
YMCA, London without disclosing his identity/particulars. He left for India via
Frankfurt, West Germany and reached Delhi on 6th June, 1979. He afterwards,
remained underground and absconding and could not be traced in spite of various
efforts until 9th May, 1983. He was hiding in a village in District Lalitpur,
U.P., where he had taken up the practice of general medicine under the fake
name of Dr. M. Singh.
11.
We
have heard the learned counsel for the parties. Very elaborate submissions have
been made by Mr. P.P. Malhotra, learned Additional Solicitor General for the
appellants and Mr. Siddharth Aggarwal for the respondent.
12.
Mr.
Malhotra has submitted on behalf of the appellant that the High Court has
committed a grave error in reversing the well reasoned judgment recorded by the
trial court. He further submits that the trial court had meticulously examined
the entire sequence of events. The evidence of the witnesses relating to
various facts and circumstances was discussed under various heads in order to
see if the chain of circumstances for bringing home guilt for offences with
which the accused had been charged was complete or not. The trial court
discussed the facts which were sought to be proved by the prosecution under the
following heads :-"
A. Native place of the
accused and his educational qualifications.
B. Marriage of the
accused, his departure for U.K. his stay at the house of his in-laws and
registration of the marriage there;
C. Birthday party at the
house of his in- laws; his conduct at and after the birthday party; his
relations with Namita before and after the Birthday party, letters exchanged
between the accused and Namita and the apology, if any, tendered by the accused
with regard to his conduct;
D. Arrangement for
conducted tour to Brussels; departure from London on the morning of 27.5.79 and
reaching Brussels in the evening; sight-seeing tour of Brussels by the accused
and Namita on the evening of 27.5.79 and return to the Hotel;
E. Visit of the tour
guide, Richard Anthony Cushnie (PWUK-12) in the morning of 28.5.79 when the
accused told him about his decision to stay back; the manner in which the
accused dealt with the Pantry 13 clerk, Benselin Myriam (PWBG-24) who wanted to
enter his room to check the refrigerator; visit of the chamber maid, Ms.
Mujinga Maudi (PWBG-22) for the purpose of cleaning the room and her observations
about the condition of the accused at that time; the condition in which the
room of the Hotel was found and request of the accused for his stay in the
hotel for extra night; and what these point out to ?
F. The arrival of the
accused in London without Namita; his explanation given to the parents of
Namita regarding Namita's disappearance from Belgium; his conduct at the time
accompanying father of Namita to Acton P.S. to report about Namita's disappearance
and his alleged escape by jumping into a running bus; and if these
circumstances are of any effect ?
G. Recovery of parts of
human body on the morning of 29.5.79 and subsequent recovery of torso from the
lake on 2.8.79.
H. Collection of
evidence pertaining to the crime from room No. 415 of Hotel Arenberg, Brussels
and reports of the forensic tests connecting the recovery of the murder.
I. Report of the post
mortem in respect of the parts of the human body recovered on 29.5.79 and other
evidence showing that the dismembered parts were that of Namita.
J. Evidence connecting
the torso to be of Namita.
K. Evidence collected
from the suitcase allegedly brought by the accused to London establishing that
the blood in the suitcase was of Namita.
L. Other evidence in the
form of recovery of clothes and shoes of Namita along with dismembered human
body.
M. Absconding of the
accused and the efforts made by the police in apprehending him vis-`-vis
explanation given by the accused in that regard.
N. Reference received from
Belgium Government for extradition of the accused and subsequent abandonment of
the request and sanction granted by Central Government for prosecution of the
accused in India.
O. Other facts referred
to on behalf of the accused breaking the chain in circumstantial
evidence."
13.
The
learned Additional Solicitor General then drew our attention to the findings of
the trial court on each point. He drew our particular attention to Point `C' relating
to the resentment of the respondent to the friendly behaviour of Namita towards
the other men in particular PWUK-23 at the birthday party. These facts,
according to Mr. Malhotra, were found to be proved by the trial court which
provided strong motive to the respondent for committing the murder of his wife.
According to Mr. Malhotra, this finding has been wrongly reversed by the High
Court. Point `D' related to the behaviour of respondent and his wife Namita in
the coach. Mr. Malhotra laid special emphasis on Point `E' which related to the
respondent's behaviour as observed by PWUK-12, PWBG-22, and PWBG-24. He submitted
that the trial court had elaborately considered the evidence of these witnesses
and rightly concluded that the respondent had murdered his wife by
strangulation and thereafter he had mutilated her body by disjointing the limbs
from the joints. The conclusion of the High Court, according to him, is
improbable.
14.
In
summing up Mr. Malhotra submitted that there is conclusive evidence to prove
that it was the respondent who committed the murder of his wife. Having
committed the murder he discarded the body parts as narrated above. Mr.
Malhotra had placed strong reliance on the cumulative effect ofthe
circumstances established on the record. Herelied on the following facts: -(1) Namita
was last seen alive in the company of the respondent on the night intervening 27/28th
May,1979(2) The respondent floated the false defence about the Namita having
left him in the morning of 28th May, 1979.(3) He did not make any complaint to
the Belgium Police.(4) He did not inform either the tour guide or any staff
member of the hotel about his wife having voluntarily left.(5) He made no
efforts to trace his wife for two days.(6) He deliberately stayed in the hotel
on 28th and left for U.K. on the 29th May, 1979. At the same time the body parts
were discovered in the rubbish container which is only two hundred meters away
from the hotel.(7) The body parts recovered from the rubbish bin have been
identified to be those of Namita by reliable expert evidence.(8) The cloth
recovered in the rubbish bin had been identified to be those of Namita.(9) The
blood group of the body stains found in the bathroom matches the blood group of
Namita.(10) The palm prints of the palm recovered from the rubbish bin match
the palm print of Namita.(11) The torso recovered has been identified to be
that of Namita from Vergote lake which is only seventeen minutes walking from
the hotel.(12) Therefore, there is scientific evidence to establish the
identity of the victim to be that of Namita. (13) He ran away from the father
of the deceased at the first opportunity that he got. (14) He remained
absconding and hiding for a period of four years till he was discovered.
15.
On
the basis of the aforesaid, learned Additional Solicitor General submitted that
the judgment of the High Court deserves to be set aside and judgment of the
trial court ought to be restored.
16.
Mr.
Aggarwal, on the other hand submitted that –
i.
The
prosecution has miserably failed to establish any motive for the alleged crime.
There is no material even to indicate what weapon was used by the respondent in
the commission of the crime. He emphasised that no weapon of offence was either
recovered or produced during the trial.
ii.
The
prosecution case is based only on hypothesis. First such hypothesis is based on
the opinion of the doctor, who conducted the postmortem examination. This
doctor had stated that it was evident that the dismemberment of the body parts
of the victim was committed by a professional doctor or a butcher, who knows
the anatomy of the human body. This could be done with the aid of certain
surgical instruments which could have been carried by the respondent with him as
he was an Orthopedic Surgeon.
iii.
The
other possibility floated on behalf of the prosecution was that as the body
parts had been simply disjointed at the various joints, it could be done by
using a fork and a butter knife, which would be available to the respondent in
the hotel room.
iv.
Mr.
Aggarwal had pointed out that it would have been virtually impossible for the respondent
to have carried surgical instruments with him through international borders
without the same coming to the notice of the customs authorities. Giving the sequence
of events, as projected by the prosecution, it would have been impossible for the
respondent to have procured the surgical instruments within the city of
Brussels.
v.
Learned
counsel had also pointed out the impossibility of mutilation of the body simply
by using a butter knife and a fork.
vi.
Mr.
Aggarwal had next pointed out that if the murder had been committed during the intervening
night of 27th/28th May, 1979 in room no. 415, i.e., fourth floor of the hotel, where
many other guests of the tour group were staying, at-least, someone or the
other of the guests should have heard the screams of the victim. The
dismemberment of the body must have caused some tangible noise which could
easily have been heard by any passer by.
vii.
He
had next submitted that the prosecution has not given any clear version as to
how the body parts were removed from the hotel to the different locations where
they were discovered. The prosecution has failed to produce any material
objects to demonstrate how the body parts were shifted from the hotel room to
the rubbish container. The prosecution had suggested that the body parts had
been removed in the red suitcase (Ex.CW/26).
viii.
Mr.
Aggarwal had pointed out that not a single witness was produced by the
prosecution who might have seen the respondent carrying the red suitcase from
the hotel to the container lying at a distance of about two hundred meters from
the hotel or to Vergote canal/lake.
ix.
Even
otherwise, he had pointed out that the body parts would not have fitted in the
suit case. The length of the suitcase was measured 67.5 cms. while the torso measured
69 cms. He had also pointed out that the torso was recovered more than two months
after the incident which would indicate that it was thrown into the lake by
someone much later than 28th May, 1979 or a few days prior to 2nd August, 1979.
If the torso had been thrown in the lake on or around 28th May, 1979, it could
not have remained submerged for two months and would have appeared on the water
surface within a few days of its disposal.
x.
It
was further pointed out by Mr. Aggarwal that other parts of the body remained
untraced even till the time of trial.
xi.
With
regard to the respondent's return to England, the learned counsel had pointed
out that if the intention of the respondent was to escape, he would not have drawn
only 200 pounds from the joint account, which in fact had a balance of over 800
pounds. The amount withdrawn by the respondent would not have been sufficient
even to buy a ticket back to India. He had pointed out that Namita's air ticket
from London to Delhi (Ex.CW/3) had been purchased for 350 pounds.
xii.
Learned
counsel then pointed out that the prosecution theory about the respondent's return
to his in-laws' home to collect his certificates is quite implausible in as
much as duplicate certificates are easily available (and were in fact obtained
by the respondent).
xiii.
Making
a reference to the material on the record, the counsel had pointed out that the
certificates were in fact not found inside the respondent's suitcase at all in
the inventory of the contents of suitcases drawn up in Belgium.
xiv.
It
was the case of the defence that even according to the parents of Namita,
respondent had returned to their home to pick up his belongings. This,
according to the learned counsel, would not be the rationale behaviour of a
guilty individual, who would not have risked returning to their house for the
sake of his clothes. In fact according to Mr. Aggarwal, respondent had no need
for any clothes. He had a suitcase full of clothes with him in Belgium. He in
fact returned to his in-laws home for discussion/confrontation with the parents
of Namita and to decide his future course of action.
xv.
On
his return, he found the behaviour of his mother in law very hostile. This is
clear from the evidence of PWUK-2 which indicates that the family tried to
search him. He was in the house for more than three hours having arrived at 2
p.m. The missing persons report lodged by PW-48 is timed at 5.30 p.m.
xvi.
The
respondent had no intention according to Mr. Aggarwal, to escape. He submits
that the entire incident within the in-laws' house has been fabricated to suit
the prosecution version, which is belied by the inconsistencies in the narration
of events by the family members. He made references to relevant portions of the
statement recorded by PWUK-1, PWUK-2, PWUK-3 (on commission) and PW-48, in the trial
court. Similarly, according to Mr. Aggarwal, the prosecution version is belied by
the conduct of the respondent at the Acton Police Station where the missing
person's report was lodged. The respondent had duly informed the police officer
of the fact that Namita had walked out on him at 6.00 a.m. on 28th May, 1979.
On this basis, the missing person's report was lodged by PW-48. The respondent's
explanation regarding the circumstances in which Namita left him was made known
to PWUK-17, Nicolas Linfoot, Sergeant Officer, Police Station, Acton. He had also
given the evidence on commission which was available at the trial. In his
statement on commission, PWUK-17 disclosed that the respondent was nervous and
agitated during the interview. He specifically returned to the police station
after they had walked out of the station to complain that he felt threatened by
his in-laws and expecting trouble from them.
xvii.
Mr.
Aggarwal then pointed out various events to show that the respondent was never intending
to either hide or abscond. Undoubtedly on 28th May, 1979, he jumped on a
running bus to get away from his father-in- law as he was apprehensive of an
altercation with him. It is also pointed out by Mr. Aggarwal that respondent
had already informed PW-48 that he would prefer to stay at the YMCA, where he actually
stayed till 30th May, 1979. If the respondent had a guilt conscience and wanted
to abscond, there was no reason to return to England. He could have let to a
safe place directly from Belgium.
xviii.
With
regard to the letter written to the Prime Minister, he points out that these
letters and telegrams to authorities were sent as he apprehended threat to his
life and false implications. He, therefore, sought protection of the authorities.
Respondent had even produced witnesses from the village where he was practicing
medicine, who stated that he had clearly disclosed his full name. He stayed in
the village Bansi for three-four years.
xix.
Mr.
Aggarwal, therefore, submits that the appellant did not want to reside at
Turkpur to avoid the social stigma. He feared of retribution and false
implication. His fears were not without any basis. The trial court record shows
that on 14th October, 1992, two years after his second marriage, an attempt was
made on his life while he was in his clinic at Kharkhoda.
xx.
Mr.
Aggarwal then pointed out that while recording evidence on commission, the Belgium
authorities did not comply with the provisions of the Criminal Procedure Code (Cr.P.C.),
1973 and the Indian Evidence Act, 1872. This was in spite of the specific directions
given by the trial court to both the parties to carry the relevant provisions
of law with them to ensure compliance with the Indian law. In fact the requisition
for commission sent to the Belgium Court specifically requested that the procedure
prescribed under Sections 135-159 of the Indian Evidence Act and that of
Section 162 of Cr.P.C. be followed.
17.
Learned
counsel also pointed out to numerous inconsistencies and contradictions in the
evidence of the prosecution witnesses and submitted that the High Court has
rightly concluded that the prosecution has failed to establish the guilt of the
respondent beyond reasonable doubt.
18.
We
have examined the submissions made by the learned counsel for the parties,
particularly keeping in view the gruesome nature of the crime and the complexities
presented in the investigation, as also at the trial of this particular case.
19.
Undoubtedly,
this case demonstrates the actions of a depraved soul. The manner in which the
crime has been committed in this case, demonstrates the depths to which the
human spirit/soul can sink. But no matter how diabolical the crime, the burden
remains on the prosecution to prove the guilt of the accused. Given the
tendency of human beings to become emotional and subjective when faced with
crimes of depravity, the Courts have to be extra cautious not to be swayed by
strong sentiments of repulsion and disgust. It is in such cases that the Court
has to be on its guard and to ensure that the conclusion reached by it are not
influenced by emotion, but are based on the evidence produced in the Court. Suspicion
no matter how strong can not, and should not be permitted to, take the place of
proof. Therefore, in such cases, the Courts are to ensure a cautious and
balanced appraisal of the intrinsic value of the evidence produced in Court.
20.
In
our opinion, the High Court has examined the entire evidence dispassionately and
with circumspection. It has noticed that the evidence produced by the
prosecution in this case is purely circumstantial. The principles on which the circumstantial
evidence is to be evaluated have been stated and reiterated by this Court in
numerous judgments. We may notice here the observations made by this Court, in
the case of Hanumant Govind Nargundkar Vs. State of M.P.1 on the manner in which
circumstantial evidence needs to be evaluated. In the aforesaid judgment, Mahajan,
J. speaking for the Court stated the principle which reads thus:- "It is
well to remember that in cases where the evidence is of a circumstantial
nature, the circumstances from which the conclusion of guilt is to be drawn
should in the first instance be fully established, and all the facts so established
should be consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and tendency and they
should be such as to exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of evidence so far complete as not
to leave any reasonable ground for a conclusion consistent with the innocence
of the accused and it must be such as to show that within all human probability
the act must have been done by the accused." The aforesaid proposition of
law was restated in the case of Naseem Ahmed Vs. Delhi Admn2, by Chandrachud J.
as follows: "This is a case of circumstantial evidence and it is therefore
necessary to find whether the circumstances on which prosecution relies are capable
of supporting the sole inference that the appellant is guilty of the crime of
which he is charged. The circumstances, in the first place, have to be
established by the prosecution by clear and cogent evidence and those
circumstances must not be consistent with the innocence of the accused. For determining
whether the circumstances established on the evidence raise but one inference
consistent with the guilt of the accused, regard must be had to the totality of
the circumstances. Individual circumstances considered in isolation and
divorced from the context of the over-all picture emerging from a consideration
of the diverse circumstances and their conjoint effect may by themselves appear
innocuous. It is only when the various circumstances are considered conjointly
that it becomes possible to understand and appreciate their true effect."
21.
We
are of the opinion that the High Court was fully alive to the aforesaid
principles and has assessed the evidence in the correct perspective. Upon
consideration of the factual and the legal position, the High Court summed up
the final conclusion. We are unable to accept the submission of Mr. Malhotra that
reached by the High Court are not plausible conclusions. Thereafter, the High
Court systematically and chronologically examined the series of incidents/circumstances
relied upon by the prosecution to establish the guilt of the respondent.
22.
It
would be appropriate to discuss these incidents/circumstances under different
headings.Motive
23.
Upon
consideration of the evidence on record, the High Court concluded as follows:- "Bearing
in mind the legal position emerging out of the said authorities and having
regard to the totality of the facts and circumstances which can be said to have
been established on record, it is not possible to infer any motive on the part
of the appellant what to talk of a motive so strong to commit the
crime."In assessing the evidence, the High Court was aware of the legal
principles that absence of motive may not necessarily be fatal to the
prosecution. Where the case of the prosecution has been proved beyond
reasonable doubt on the basis of the material produced before the Court, the
motive loses its significance. But in cases based on circumstantial evidence,
motive for committing the crime assumes great importance. In such circumstances,
absence of motive would put the Court on its guard to scrutinize the evidence
very closely to ensure that suspicion, emotion or conjecture do not take the place
of proof (See Surinder Pal Jain Vs. Delhi Administration3 and Tarseem Kumar Vs.
Delhi Administration4). We may also notice here the observations in Subedar Tewari
Vs. State of U.P.5 wherein it has been observed that - "The evidence
regarding existence of motive which operates in the mind of an assassin is very
often than (sic) not within the reach of others. The motive may not even be
known to the victim of the crime. The motive may be known to the assassin and
no one else may know what gave birth to the evil thought in the mind of the
assassin." Again reiterating the role played by motive in deciding as to
whether the prosecution has proved the case beyond reasonable doubt against an
accused, this Court in the case of Suresh Chandra Bahari Vs. State of Bihar6
held as under:- "Sometimes motive plays an important role and become a
compelling force to commit a crime and therefore motive behind the crime is a
relevant factor for which evidence may be adduced. A motive is something which prompts
a person to form an opinion or intention to do certain illegal act or even a legal
act with illegal means with a view to achieve that intention. In a case where
there is motive, it affords added support to the finding of the Court that the
accused was guilty for the offence charged with. But the evidence bearing on
the guilt of the accused nonetheless becomes untrustworthy or unreliable
because most often it is only the perpetrator of the crime alone who knows as
to what circumstances prompted him to adopt a certain course of action leading
to the commission of the crime." In our opinion, the conclusion recorded
by the High Court is in accordance with the aforesaid principles. Merely
because the respondent objected to the behaviour of Namita towards her male
friends at the birthday party of her sister Shiela would not be sufficient to
hold that the appellant had the necessary motive to kill her. It is inconceivable
that the respondent would have married Namita only for the purpose of
committing her murder, that too on the very first night of their honeymoon.
Both the trial court and the High Court, in our opinion, have correctly
recorded the conclusion that it was in fact in the interest of the respondent
that Namita had remained alive. The success of his very objective to remain permanently
in England was dependent on the continuance of his marriage for at least
another year.
24.
We
are also not much impressed by the submission of Mr. Malhotra that the
simmering resentment which was caused by Namita's refusal to consummate the marriage
would be sufficient to impel the respondent to commit her murder. In our
opinion, the High Court has correctly concluded that the two letters Ext.CW-13
andEx.CW-14 exchanged between Namita and Mahender would tend to show that
respondent was in fact trying to make amends after the birthday party on 5th
/6th April, 1979. There was no untoward incident thereafter. It is accepted by
all that the marriage was duly registered on 26th May, 1979 and that the couple
voluntarily left for the honeymoon.
25.
The
trial court upon examination of the entire evidence had in fact concluded that
something had gone amiss in the hotel room occupied by Mahender and Namita on
the night of 27th/28th May, 1979. If that be so, the High Court rightly
concludes, that this fact alone would contradict the theory of respondent
having any pre-meditated strategy or design for committing the murder of his
wife. The High Court correctly concluded that "it is highly improbable to
comprehend that respondent had a predetermined mind or motive to cause the
death of Namita on the honeymoon night itself at the first available
opportunity of being in the company of the deceased in a closed room as suggested
by the prosecution. Had the attitude of the parties been as suggested by the
prosecution, they would not have agreed to a marriage followed by a honeymoon
trip outside London." The High Court also noticed that there was nothing
to suggest that Namita or her family members had apprehended any harm or threat
to life of Namita at any stage till the couple left for the honeymoon on
morning of 27th May, 1979. The High Court found it impossible to accept the
prosecution theory that the respondent had married the deceased only with a
view to do way with her to take revenge for her appalling behaviour at Shiela's
birthday party. Had the respondent been so resentful, there was no question of
the marriage being sole manised. LAST SEEN CIRCUMSTANCE/EVIDENCE –
26.
On
this issue, the High Court has merely recorded that the respondent has not
disputed that Namita was with him in the room throughout the night. This
position is also maintained by Mr. Aggarwal before us. The respondent had,
however, claimed that Namita had left him at 6.35 a.m., in the morning of 28th
May, 1979. The High Court upon examination of the evidence of the Manager of
the Hotel concluded that it was not possible to hold that Namita was seen alive
by anyone in the morning of 28th May, 1979. The High Court, therefore, observed
that it was for the respondent to explain about her disappearance.
27.
The
explanation given by the respondent consistently from the beginning is that
Namita had left him voluntarily early in the morning of 28th May, 1979.It is
also his case that she married him only under pressure from her parents. She
had purchased a new suitcase in which she packed most of her clothes immediately
upon returned from the "Brussels by Night" tour. The red suitcase
with which she had traveled from London to Belgium was left with the respondent
containing some of her clothes. This suitcase even though had a blood stain was
carried back to the house of Namita's parents by the respondent himself. It
seems inconceivable that a person who has committed the murder of his wife and
has used the aforesaid suit case for storing and carrying the body parts would
bring it back to England risking his own safety. The respondent also narrated
before the police that his wife had left him voluntarily on the morning of 28th
May, 1979. This fact was further reiterated by him in the letter to the Prime Minister
of India which runs as follows :- ".....After seeing these historical
places we reached to our room. We took our bath and she gave me half currency
my passport and ticket to me. She asked me to go out for a while and then came
with new suitcase. She accommodated the maximum articles possible in that and
left the rest in the suitcase which she took with her from her house. Then she told
me that dear Mahendra I want to tell you something very important and that is
"I have married you just for the sake of my parents for which they were pressing
me. Now I will think about my future and you also should think about your own
future. Do not object me for anything" saying this she went out and asked me
not to follow her. I waited till morning when the Cosmos Coach guide came to
room and asked to get ready for the further tour but I told him that I am
waiting for my wife because she has gone out."
28.
In
our opinion, the last seen evidence would not necessarily mean that the
respondent had killed his wife. Given the previous attitude of Namita, it is
quite possible that she had walked out on her husband. EVENTS ON THE MORNING OF
28th May, 1979
29.
The
most important circumstance relied upon by the prosecution relates to the state
of affairs which existed in Room No.415 of Hotel Arenberg and the behaviour
pattern exhibited by the respondent on the morning of 28th May, 1979. This was
sought to be proved by the evidence given by three witnesses, namely,PWUK-12
Richard Anthony Cushnie, PWBG-22 Mujinga Maudi and PWBG-24 - Benselin Myriam.
The High Court notices that the prosecution had sought to project through these
witnesses a certain state of affairs to prove that the respondent had a guilty
mind.
30.
The
High Court rejected the evidence of the tour guide (PWUL-12) as being
inconsistent. The High Court notices that this witness had gone up to room
no.415 to inform the couple that the tour party was ready to leave. He knocked
on the door. It was half opened by the respondent. He found the respondent was
perspiring but at the same time assumed his behaviour to be quite normal or non
exceptional. The High Court also notices that this witness had prepared two
reports Ext.CW42/A and CW42/B after the termination of the tour. None of the
two reports make any mention about the abnormal behaviour of the respondent.
These reports rather indicate that the witnesses must have been in a hurry when
they visited room no.415 and could not have talked to the respondent for more
than a couple of minutes. In fact, in one of the reports, this witness mentions
the fact that the father-in-law of the respondent had told him that Namita had
abandoned the respondent on the morning of 28th May, 1979. In our opinion, the
High Court was justified in concluding that this statement would support the
defence plea.
31.
We
may also notice that this witness in his cross examination clearly stated that
1979 was his first year as a tour courier. He accepted that portion of the
report (marked 8) was written by him. The aforesaid portion contained the words
"It could be that the wife left very early and the arranged marriage giving
her the opportunity. It is conceivable that the girl left early in the morning.
The arranged marriage having given her opportunity to leave home and make a
life on her own and therefore satisfy the desires of both parties." He
also stated in the cross examination that on his visit to room no. 415, he
could not have remained with the respondent much more than 2 minutes. He goes
on to say that "at the time the coach was waiting, we were anxious to be away.
I did not enter the room at any stage during that period of 2 minutes. I did
not try and peep inside the room." Such being the state of affairs, we are
unable to accept the submission of Mr. Malhotra that the High Court wrongly
discarded the evidence of this witness.
32.
In
rejecting the evidence of PWBG-22 Majinga Maudi, the High Court noticed that
this witness was examined by the police on a number of occasions, but she could
not even give the correct room number. She actually stated that she visited
room no.410. The High Court also concluded that from her evidence it becomes apparent
that the respondent did not even put a latch on the door nor did he take any
extra precaution to keep the room closed. This witness was able to enter the
room without knocking. Mr. Malhotra, however, laid considerable emphasis on the
part of the statement that when she entered the room she saw the respondent sitting
on the bed with hands on his face and she thought him to be sick. This witness
also stated that she wanted to open the curtains of the window but the respondent
did not allow her to do so. According to Mr. Malhotra, this would clearly
indicate that the respondent was deeply distressed and disturbed. Mr. Malhotra
also emphatically reiterated that this witness proved that the bathroom was
totally soaked with water and there were wet towels on the floor of the bathroom.
When she was cleaning the room, the respondent did not leave her for a second.
The High Court, however, notices that this witness did not find any incriminating
article like the body or body parts either in the room or in the bathroom, nor
she found even a trace of blood on the carpet or on the wall. This witness had herself
stated that the respondent had left the room unattended knowing perfectly well
that this witness could enter the room in his absence. We do not accept the submission
of Mr. Malhotra that the cause of respondent's distress was the murder that he
had committed. It could equally be the distress of a husband whose wife
deserted him on the honeymoon. In our opinion, the High Court has correctly
assessed the evidentiary value of the statement of this witness.
33.
The
other witness relied upon by the prosecution was PWBG-24 who wanted to enter
the room in order to take the inventory of the mini bar. He was, however, not permitted
to do so by the respondent. The High Court notices that the earlier witness had
actually stated that he had come inside the room and he had talked to her.
34.
From
the above, it becomes apparent that it was only on a very careful consideration
of the evidence of all the witnesses, the High Court concluded that the behaviour
of the respondent cannot be said to be consistent only with the guilt of the
respondent. In our opinion, the High Court correctly notices that no explanation
was forth coming as to where the body or dismembered body parts could have been
concealed by the respondent throughout the night of 27th/28th May,1979 as well
as the morning and the afternoon of 28th May, 1979. The High Court notices that
it is the case of the prosecution that the body parts were disposed of after
the evening of 28th May, 1979. The suggestion of the prosecution that the body
might have been kept either in the cupboard or under the bed was correctly held
to be conjectural.
RECOVERY OF BODY
PARTS FROM THE RUBBISH CONTAINER AND THE IDENTIFICATION THEREOF -
35.
The
next circumstance relied upon by the prosecution to connect the respondent with
crime is the recovery of body parts allegedly of Namita viz. head, severed
upper and lower limbs minus thigh portion from a refuge container lying at Rue
De Loxum in the morning of 29th May, 1979 and that of torso from Vergote Lake, Brussels
on 2nd August, 1979. Certain pieces of clothings and a shoe were also recovered
form the rubbish container which according to the prosecution had also belonged
to Namita. The body parts were recovered by arag picker namely Verbeleen
Marcel, PWBG-6. He had been looking for some lead or copper in the rubbish container
for selling. Instead, he found a packet which was wrapped with a black pullover
containing an arm in the shape of a hand without fingers, two arms cut into four
pieces. On seeing such a sight, he became nervous and called the police. Responding
to his call, two policemen arrived. PWBG-13, Van Eesbeek Pierre, a police officer
of Brussels on reaching the site looked into the waste container and found a
pair of legs and the feet. These remnants were wrapped in chiffon and inside a plastic
bag. The other witness of the recovery is PWBG-21, Vinde vogel Rene. He has
stated that he had accompanied PWBG-13, Van Eesbeek Pierre. They had found in
the container, inside a cardboard box, two pieces of arms and on further search
found a red cloth wrapped packet with plastic and when he opened it, ahead
rolled down. According to him, his colleague found one of the two legs and the
feet in other side of the container, also packed in a red fabric. The High
Court, therefore, concluded that only one piece of clothing found near the body
parts was a black pullover and some red fabric, which might have been used for
wrapping the body parts. These witnesses did not speak about the recovery of
any other clothing or shoes as is sought to be proved through PWBG-8 Nelissen
Urbain, PWBG-14Etienne Martin, PWBG-25, Lecerf Jacques, PWBG-27Pissoort Jean and
PWBG-28 Dooms Jeanean. It is noticed by the High Court that none of these
witnesses except PWBG-28 Dooms Jeanean speaks about the recovery of any
clothing or shoe from the site of recovery. In fact PWBG-28 Dooms Jeanean could
not speak with certainty as to what garments or shoes were discovered from the
container. The High Court further notices that the details of clothing and
shoes do not find mention in the report of the police dated 30th May, 1979. The
report simply mentions that there were several pieces of ladies' clothing which
were seized and would be described in a special report. It appears that no
contemporaneous report of recovery of these clothings was prepared. The report
was subsequently prepared on 8th June, 1979 in the form of an inventory of
items found on 29th May,1979. These for the first time specified a pink brown cardigan
covering the legs, a black pullover and red fabric which are described by the
witnesses. The High Court also notices that the police had already collected and
seized various articles and things from the house ofPW-48, Mr. Lochab in London
on 5th June, 1979, 6thJune, 1979 and 7th June, 1979.
36.
In
our opinion, the High Court has reached the appropriate conclusion that the
possibility of these garments and articles having been planted by the police by
obtaining the same from the house of Namita with the object of fixing the
identity of the body parts belonging to Namita by means of the clothes can not
be ruled out. It is noteworthy that no contemporaneous recovery memo was
prepared by the police on 29th May, 1979 itself. There was omission of the
details of the allegedly recovered clothes in the statement of the witnesses. Articles
had already been seized from the house of Namita on three consecutive days 5th,
6thand 7th June, 1979. The Special Report containing the inventory of the
clothes is dated 8th June, 1979. It is in this report that clothes are
mentioned for the first time. We are unable to accept that even in the face of
such material, the conclusion reached by the High Court is not plausible.
37.
We
may also notice that prosecution had allegedly recovered the clothes Namita had
taken on the trip. Namita's wedding dress was stated to have been recovered as
part of the clothings. The High Court, in our opinion, correctly observed that
ordinarily a woman would not carry her wedding dress on her honeymoon trip. The
High Court also notices that though the prosecution had taken custody of all
the clothes which Namita had taken with her on the honeymoon trip, they were
not produced at the trial for identification by the witnesses. Only photographs
of the clothings, which had been allegedly taken on 12th June, 1979 i.e. after
16 days, were produced.
38.
Mr.
Malhotra had, however, submitted that these clothes were torn, lacerated in
blood stains and, therefore, must have withered away into waste beyond recognition.
In our opinion, the High Court has correctly taken view that the prosecution
was duty bound to produce the clothings at the trial. It was through these clothings
and articles that the prosecution had sought to establish the identity of the
deceased. The High Court, in our opinion, correctly recorded the conclusion
that on consideration of the relevant evidence of the witnesses and various
documents on record, the prosecution had miserably failed to establish the
recovery of clothes or shoes by means of any cogent and reliable evidence. The
High Court also held that the identification of the clothings and shoes as
belonging to Namita through the testimony of PW-48 Jagdish Singh Lochaband
PWUK-2 Amita Lochab was not sufficient to discharge the burden of proof which
lay on the prosecution. The High Court notices that the identification of the
shoes by Mr. Lochab could not be definitely said to have made in the presence
of any police officer. Mr. Lochab was unable to remember if any police officer
was present or not at the time of the identification. In the first instance, he
had stated that the officer had recorded his statement and he had signed the
same with regard to the identification of the clothes. However, in the same breath,
when confronted with the previous statement made to the Belgium Investigation
Authorities, he denied it. The High Court also notices that there was no
mention of any identification test of clothings having been made by these
witnesses. In our view, the High Court had drawn the only logical conclusion
from the aforesaid that this witness was not consistent so far as the
identification of the clothes are concerned. The prosecution did try to prove that
the shoes recovered were only purchased in Britain and that it had been purchased
from Top Shop. The High Court observed that the test identification of the
property has not been done in accordance with certain well settled legal
parameters. Certain safeguards had to be observed to rule out the possibility
of any doubt or confusion. Apart from the technical objections with regard to
the test identification, the High Court adversely commented that only photographs
of the clothes were produced. We, therefore, find no merit in the submission of
Mr. Malhotra that the clothes had been definitely identified as belonging to Namita.
IDENTITY OF THE BODY PARTS
39.
This
now brings us to a vital segment of the case which had to be proved by the
prosecution i.e. identity of the body parts recovered on 29th May, 1979and 2nd
August, 1979 as that of Namita. To link the body parts to Namita, the
prosecution had examined a number of witnesses. Heavy reliance was placed by the
prosecution on the report of the postmortem examination conducted by Dr.
Rilleret (since dead) and PWBG-4 G. Voordecker, Forensic Pathologist. The
prosecution also relied on the evidence of PWBG-5 Lambert Claudine and Stomatologist
PWBG-20 Wackens Georges, who had examined the dental specifics of the body and
the report of finger/palm prints experts. The other witnesses relied upon by the
prosecution were PWUK-1Smt. Chandermukhi Lochab and PW-48 Jagdish Singh Lochab,
i.e. mother and father of Namita. They gave description of certain
identification/special marks which Namita had on her person. According to
Jagdish Singh Lochab (PW-48), Namita was about 5'-4" of height, the hair
of her head were black, she had 31 teeth instead of 32 as one tooth had been
extracted at young age; she had a scar on her right knee, had a fracture of her
left wrist and had a smallpox inoculation mark on her left upper arm. PWBG-4
Voordecker Guy has concluded its report as under:-
i.
The
victim had been strangulated.
ii.
The
hair of the victim were black.
iii.
The
victim was a young woman of non-white race of a height of 1 meter 60 cms.
(Emphasis supplied)
iv.
The
victim had a special feature at the teeth level i.e. the existence of a single
upper central incisor tooth.
v.
An
old Coutaneous triangular cicatricies mark of three centimeters was there on
the surface of right knee cap.
vi.
There
were burns on the chin at the left retro particular region and also on the
limbs, on the left and right arms and left forearm. These burns appeared to be
caused after death.
vii.
The
dislocation of the body was work of a doctor/surgeon or a butcher.
viii.
The
autopsy was done on 29th May, 1979 and the death took place within 48 hrs.
ix.
The
autopsy was carried out on 29th May, 1979 but report submitted on 11th
December, 1979.
x.
The
examining doctor could not say if there were vaccination marks on left arm and callosities
in the front side of the feet. (Emphasis supplied)
40.
The
Stomatologist PWBG-20 Wackens Georges concluded his opinion as follows:-
i.
That
the body belonged to a person having feminine sex.
ii.
It
was of a person between 20 and 30 years of age who was of African or Indian
origin. (Emphasis supplied)
iii.
Left
upper incisor was not there which might have been lost since long time.
iv.
The
teeth were of a person who lived in an affluent social status.
41.
Mr.
Aggarwal has criticised the veracity of the aforesaid findings on a number of
grounds which have also been considered by the High Court. Mr. Aggarwal has
reiterated the submissions which were made before the High Court. He submits
that the postmortem examination on the body parts recovered in the morning of
29th May, 1979 was conducted by Dr. Rilleret and Voordecker Guy on 29th May,
1979 itself. The report is given about seven months later on 11th December,
1979.In this report, the conclusions are as under:- " From all the
findings we are entitled to admit that the (sick) considered human remains are of
a young woman of about 160 cms, of coloured race. (Emphasis supplied) The cuts
were made after death by an individual who is apparently experienced in disjoining
and who respected the anatomic characteristics. The presence of bloodstains in
the eyes makes us think a murder by constriction. The remains were burned
superficially."
42.
According
to Mr. Aggarwal, the postmortem report was prepared after consultation with the
father and sister of Namita. This fact is apparently mentioned on page 24of the
report of Dr. Rilleret. We may also notice that the postmortem examination of
the torso/trunk portion recovered on 2nd August, 1979 was performed by Dr.
Rilleret (since dead) and PWBG-4 Voordecker Guy on3rd August, 1979. On a
comparison of the evidence gathered respectively on 29th May, 1979and 2nd
August, 1979, these witnesses have recorded the conclusion that "the human
remains examined at the later date do correspond to the same body namely to the
corpse of Namita Lochab."
43.
The
High Court upon considering the entire evidence relating to this issue,
however, concluded that no reliance could be placed on the reports presented by
the prosecution for the purpose of establishing the identity of the body parts
as that of Namita. The High Court highlighted that P'WBG-20 Wackens
Georges,Stomatologist had in the first instance stated on examination of the
dental specificities of the body parts on 30th May, 1979, he recorded the
report "X". However, subsequently he stated that he had given another
report marked "A". He then tried to explain that the provisional report
was marked "X" and the final report was marked "A". Upon
comparison of the two reports, the High Court concluded that the two reports
are wholly inconsistent. In the alleged provisional report, on the basis of the
stomatological examination PWBG-28 Dooms Jeaneanhad concluded as under:-
"Female
individual, at least thirty years old and of North African type. Lived for a
long time in a civilized, upper middle-class environment. Good education.
Taking much care for her teeth. Regularly visited her dentist, who looks tidy,
experienced and serious. The individual lacks one upper left central incisor
and her left canine should have been rather conspicuous. The individual had
probably a tic, such as biting her fingernails. This, and the other mentioned
facts, suggest that the individual should be between 29 and 30 years old."
(Emphasis supplied)
44.
However,
in the final report, the conclusions recorded were as under:- "Individual
belonging to the female sex whose age is presumed between 20 and 30 years and belonging
to the North-African, Indian type. (Emphasis supplied) Lived since long in a
civilized society in a well off category. Had good education. Taking very good
care of teeth and used to visit regularly her dentist. The later used to take
good care of them regularly and seriously. The individual did not have a left
upper central incisive and had a prominently visible left canine. It may not be
overlooked that the individual have had a habit, such as nibbling her fingers."
45.
A
perusal of the aforesaid clearly shows that in the report which was prepared
contemporaneously, the experts had put the age of the deceased between 29 to
30years. A perusal of the same shows that initially the report states that the
individual was at-least 30 years old and of North-African type. At the end of
the report, it is stated that the individual should be between 29-30 years only.
This opinion undergoes a change by the time a final report is prepared. It is
now stated that the" Individual belonging to the female sex whose age is presumed
between 20 and 30 years, and belonging to North-African Indian type." The
differences between the two reports are so glaring, understandably, the High Court
was compelled to hold that the second report was clearly an afterthought and
deliberate improvement over the earlier report. The High Court, in our opinion,
appropriately concluded that this must have been made to cover up the first
report which did not connect the body parts with that of Namita in as much as
age of Namita was stated to be around 25 years. In fact, it is a matter of
record that Namita was born in 1956, that would make her only 24 years at the
relevant time.
46.
The
High Court thereafter took up the issue with regard to the missing incisor
tooth. We have noticed earlier that PW-48 Mr. Lochab had stated that Namitahad
31 teeth instead of 32 as one tooth had been extracted when she was of a very
young age. The High Court notices that in his earlier statement, he had stated that
another tooth had been fixed at the place of the tooth so extracted. This was
done so that no anomaly existed in her denture. This witness was also not able
to speak with certainty about the Namita having a scar on her right knee. The
High Court also took note of the fact that this witness did not mention any of these
identification marks at the time when he had lodged the missing report. He had
rather stated that he was not aware of any visible marks or scars or other
peculiarities of Namita. He was not even sure about the colour of Namita's hair
as he had stated that her hair were dark brown. Contrasted with this, the
evidence of the mother PWUK-1 was that one of the Namita's front tooth was missing.
However, there was no gap in between the incisors. She had stated that Namita
had a scar mark on her left knee. She also stated that Namita had three inoculation
marks on her shoulder. The High Court notices that this witness was, however,
not able to give details of any identification marks on her other children. This,
in our opinion, would be sufficient to justify the conclusion reached by the
High Court that neither the mother PWUK-1 nor the father PW-48 of Namita were exactly
aware/sure of any identification marks of Namita. The High Court, therefore,
observed that a possibility cannot be ruled out that these witnesses may have
given these marks after the disclosure of such marks in the postmortem
examination's report. In fact, it may be note worthy that no
vaccination/inoculation marks have been found by the doctors, who conducted the
postmortem examination.
47.
Mr.
Malhotra had, however, emphasised that the identity of Namita had been established
from the comparison of palm prints found in the house of her parents and the
palm prints of the body parts found in the rubbish container. The High Court
examined this issue with due care and caution. It is noticed thatPWUK-18
Christopher John Coombs, the finger print expert was not able to conclude that
the evidence produced would connect the palm prints with the palm prints of
Namita. The reports submitted by the doctors contained numerous discrepancies. This
apart the identification marks given by the witnesses did not coincide with the
reports. Therefore, the High Court concluded that no implicit reliance could be
placed upon them for the purpose of establishing the identity of these body
parts as that of Namita.RECOVERY OF THE BLOOD FROM THE BATHROOM
48.
Mr.
Malhotra had emphasised that the examination of the blood recovered form the
bathroom and the blood group of Namita, both being identical, the High Court wrongly
failed to rely upon the same. The High Court rejected the blood report on the grounds
that report in many columns used the term "Nihil" meaning
"No". The report also contained question marks, blank spaces at various
places. The report suggests that it is merely a comparison of favorable
characteristics. The experts did not provide any explanation in regard to the
terms that had been used in the report. In fact, the High Court records a
conclusion that the report used different methods i.e. ABO method and Gm method
without giving any justification as to why the two different methods were used.
Therefore, the High Court concluded that unfavorable characteristics/factors
detected during the course of examination had been suppressed. The High Court
also took note of the fact that the prosecution failed to place on record any
cogent evidence with regard to the blood group of Namita. PW-48 only stated her
blood group was `O', but even he was not able to say whether it was `O+' or
`O-`. The High Court quite appropriately observed, on the basis of the opinion
of the examining experts, that more than fifty per cent population of Belgium
has `O' blood group. In such state of affairs, the High Court was constrained
to conclude that the prosecution has not been able to establish even this limb
by means of cogent and reliable evidence.
49.
Mr.
Aggarwal had also pointed out a number of other infirmities with regard to the
non-comparison of a blood sample taken from the body parts recovered. He had
pointed out that no reliance could have been placed on the analysis of the
blood by PWBG-17. According to Mr. Aggarwal this witness had examined "crusts"/"lumps"
of "dark red" blood. This, according to Mr. Aggarwal, would indicate
that the blood belonged to a living person since it was coagulated and that the
blood was fairly new. This in turn would lead to a reasonable inference that
the blood did not belong to Namita Lochab, in as much, as her blood should been
"powdery" i.e. non-coagulated (belonging to a dead person). It should
have been brownish black / black in colour as it would have been old blood,
since it was recovered more than two weeks after the alleged dismemberment of
her body in the bathroom. In support of the submission, Mr. Aggarwal had relied
on Parikh's Textbook of Medical Jurisprudence Forensic Medicine and Toxicology,
in particular on page 7.11 and 7.23. In the aforesaid textbook, it is stated as
under:- "Character: Sometimes, it is possible to determine if blood came
from (a) living or dead body (b) artery or vein (c) victim or assailant (d) infant
or adult, and (e) male or female. Living or dead body: Blood which has effused during
life can be peeled off in scales on drying due to the presence of fibrin. Blood
which has flowed after death tends to break up into powder on drying."The
issue was raised before the High Court. The High Court, however, rejected the
reports for the reason stated as not being intrinsically reliable.
50.
We
are of the considered opinion that there is no reliable evidence to indicate
that the blood that was recovered from the bathroom of room no. 415 definitely belonged
to Namita. It must be remembered that the only drop of blood that was found was
at the base of the bidet, in the bathroom. The bathroom would be used successively
by different tourists occupying the room. This apart, the very recovery of the
blood stains from the bidet seems highly doubtful. It has come into the evidence
of PWBG-19 Salomone Levy, the Manager of the hotel in whose presence the blood
stains were allegedly lifted, that many tourists had occupied room no. 415 between
29th May, 1979 and 12th June, 1979. According to him, no tourists/guests ever
complained of any bloodspot on the bidet. The first ever discovery of blood was
stated to be on 12th/13th June, 1979, i.e., about 14 days of the alleged
incident. If the blood stains lifted from the bidet were of a person who was
killed on 28th May, 1979, the same could not be of red or red brown colour. The
colour of the stain would have been blackish brown. It appears to us that the
High Court was wholly justified in rejecting the evidence with regard to the
recovery of blood from the bidet.
51.
We
now come to the final circumstances relied upon by the prosecution with regard
to the conduct of the respondent after returning to England. We are of the considered
opinion that the High Court was not correct in drawing an adverse inference
against the respondent because he remained in hiding till he was arrested by
the CBI. In this case, the subsequent conduct of the appellant is not
consistent with the expected conduct of a guilty person. If the respondent had
any intention of absconding, he could have done so initially after the alleged
murder of his wife. He had no need to come back to England. Having come back he
need not have gone directly to the house of his in-laws. Not only did he come back
to England, he carried with him the red suit case containing some of Namita's
clothes. According to the prosecution, this suitcase had contained blood stains
which had belonged to Namita. It is inconceivable that a person having a guilty
mind would have been carrying such an incriminating article back to the house
of his in-laws. As noticed above, he went back to India apprehending danger
from his father-in-law and family. This apprehension of danger to his life at
the instance of his father-in-law continued even in India. The fact that an
attempt was made on his life had been duly recorded by the trial court. The
respondent had been petitioning the police authorities as well as the Home
Minister and the Prime Minister of India seeking protection. Evading arrest
would certainly be an illegal act but it does not lead to the only conclusion
that the respondent was hiding due to a guilty conscience. We may also notice here
the observations made by this Court in the case of Matru Alias Girish Chandra
Vs. The State of Uttar Pradesh7 which are as follows:- "The appellant's
conduct in absconding was also relied upon. Now, mere absconding by itself does
not necessarily lead to a firm conclusion of guilty mind. Even an innocent man
may feel panicky and try to evade arrest when wrongly suspected of a grave
crime such is the instinct of self-preservation. The act of absconding is no
doubt relevant piece of evidence to be considered along with other evidence but
its value would always depend on the circumstances of each case. Normally the courts
are disinclined to attach much importance to the act of absconding, treating it
as a very small item in the evidence for sustaining conviction. It can scarcely
be held as a determining link in completing the chain of circumstantial
evidence which must admit of no other reasonable hypothesis than that of the
guilt of the accused."
52.
We
are of the considered opinion that the respondent did not come out of hiding
due to fear as also to avoid arrest by the police but it certainly can not be concluded
that he was hiding because of a guilty conscience.
53.
We
may also notice here that according to the prosecution, dismemberment of the
body parts was performed either with surgical instruments or with the aid of a
butter knife and a fork. However, at the trial, the prosecution did not produce
any evidence with regard to the recovery of any weapon of offence. Nor any
weapon was produced in court, at the trial. Even according to the sequence
given by the prosecution, it would have been impossible for the respondent to
procure the surgical instruments in the city of Brussels during the night intervening
27th/28th May, 1979. It is a matter of record that the entire group of tourists
did not return back to the hotel till after 11 O' clock during the tour
"Brussels by Night". Namita was with him throughout the tour. Equally
he could not have carried the surgical instruments with him without the same
being noticed at the customs barriers. This apart, prosecution has miserably
failed to establish that the respondent had any intention of committing the
murder of his wife at the commencement of the honeymoon trip. Even Namita's parents
did not entertain any such apprehensions. It is also the prosecution case that
something went amiss in room no. 415 during the night of 27th/28th May, 1979. Therefore,
it makes the possession of surgical instruments by the respondent on the
fateful night in Brussels virtually impossible. We are also unable to accept
that such severance of the body parts could possibly be achieved by use of a
simple butter knife. It is simply too farfetched a notion to be taken
seriously.
54.
We
are of the considered opinion that the conclusions reached by the High Court
would clearly show that the prosecution had miserably failed to connect the
respondent with the alleged murder of his wife. The conclusions recorded by the
High Court are fully justified by the evidence on record. We are, therefore,
unable to agree with Mr. Malhotra that there has been any miscarriage of
justice in the facts and circumstances of this case.
55.
Before
we part with this judgment, we must place on record our appreciation of the very
valuable assistance rendered by Mr. P.P. Malhotra, the learned Additional
Solicitor General and Mr. Siddharth Aggarwal, who appeared for the respondent.
56.
We,
therefore, find no merit in the appeal. The appeal is accordingly dismissed.
...................................J.
[B.Sudershan Reddy]
....................................J.
[Surinder Singh Nijjar]
New
Delhi:
January
28, 2011.
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