Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 294 of 2010

Munish Mubar …Appellant

Versus

State of Haryana …Respondent

J U D G M E N T

Dr. B.S.CHAUHAN, J.

1.This appeal has been preferred against the impugned judgment

and order dated 27.3.2008 in Criminal Appeal No. 553-DB of 2006 of

the High Court of Punjab & Haryana at Chandigarh, by way of which,

the High Court has affirmed the judgment and order of the learned

Additional Sessions Judge, Gurgaon, dated 26.4.2006, by which the

appellant was convicted alongwith the co-accused, Shivani Chopra

under Sections 302/34 of Indian Penal Code, 1860, (hereinafter

referred to as the `IPC’), and sentenced to undergo life imprisonment

Page 2 and to pay a fine of Rs.5000/- each; under Section 201 IPC, to

undergo rigorous imprisonment for three years and to pay a fine of

Rs.300/- each; and also under Section 120-B IPC, to undergo

rigorous imprisonment for three years. In addition to this, the

appellant was also convicted under Section 404 IPC, and sentenced to

undergo rigorous imprisonment for two years and to pay a fine of

Rs.200/-. However, it was ordered that all the aforementioned

substantive sentences, would run concurrently.

2.The facts and circumstances giving rise to this appeal are as

under:

A.On 27.12.2002 at 1.00 P.M., one Krishan Pal (PW.10), a

resident of Village Bhondsi, District Gurgaon, noticed a dead body

lying in a plot of land belonging to one Babu Singh. Seeing that the

corpse had multiple injuries, he informed Inspector Shamsher Singh,

(PW.21), who was present at the Bus Stand, Bhondsi alongwith other

police personnel. Inspector Shamsher Singh, thereafter recorded the

statement of Krishan Pal (Ex. PL) and reached the said land of Babu

Singh. Inspector Shamsher Singh, I.O., then recovered the dead body

lying there, and got the same photographed; he also lifted from the

spot, blood stained earth; a blood stained vest; a boarding card issued

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Page 3 by Jet Airways; an almond coloured button, one blood stained

hammer and a knife, and upon recovery of the same, he prepared the

recovery memos. He then sent ruqa on the basis of which, an FIR was

registered. An inquest report was prepared, as regards the dead body.

B. On 28.12.2002, the dead body so recovered, was identified to

be that of one Ashok Jain, son of Shri Mehar Chand Jain, resident of

Mehardeep, 1/9, Sarojni Road, Santa Cruz, Mumbai. On 30.12.2002,

Inspector Shamsher Singh (PW.21) obtained the details of mobile

phone no. 9818082192, from the Airtel office at Okhla, New Delhi,

and also collected a list of articles which the deceased had brought

along with him on 4.1.2003 by Jet Airways.

C.In the course of investigation, the investigating officer took into

his possession, the records related to the parking of one Santro car no.

UP-32-AG-9991 on 9.1.2003, from the car parking stand of the New

Delhi Airport. The investigating officer, further collected the records

of hotel Suji International, Paharganj, Delhi and took the same into

possession. The investigating officer also arrested Shivani Chopra –

the co-accused on 10.1.2003 and recovered from her one mobile

phone. The investigating officer then arrested the appellant, Munish

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Page 4 Mubar on the same day while he was traveling in the abovementioned

Santro car. He recovered from the accused another mobile phone.

D.On 11.1.2003, the appellant made a disclosure statement to the

effect that he would show to the police, the place where he, along with

the co-accused, had disposed of the dead body of the deceased, as

also, the place where they had gotten rid of deceased’s clothes. Thus,

on 13.1.2003, the investigating officer got recovered the articles

belonging to the deceased.

E.The investigating officer recorded the statements of a large

number of persons, which revealed that there existed an illicit

relationship between the appellant and co-accused Shivani Chopra,

and also that, she was an employee of Ashok Kumar Jain – the

deceased and was supposed to receive the deceased at the Airport,

upon his arrival from Mumbai.

F.Upon conclusion of the investigation, the I.O. submitted a

challan against the appellant and the co-accused Shivani Chopra, as

well as one Sudhir Srivastava. On committal of the said proceedings,

both the accused were charged for the aforementioned offences, and

the appellant was additionally charged under Section 404 IPC. Both of

them pleaded not guilty and hence, claimed trial. The co-accused

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Page 5 Sudhir Srivastava could not be put to trial as he was absconding at the

time.

G.In order to substantiate the charges against the accused, the

prosecution examined 22 witnesses. The appellant also examined

some witnesses in his defence and, after the conclusion of the trial, the

trial court upon appreciation of the complete material and evidence on

record, found the appellant as well as the co-accused Shivani Chopra,

guilty of all the charges against them and imposed upon them

punishment as has been described, hereinabove.

H.Aggrieved, the appellant, as well as the co-accused Shivani

Chopra, filed Criminal Appeal Nos. 553-DB of 2006 and 359-DB of

2006. Both the appeals were heard and disposed of by way of

common judgment dated 27.3.2008.

I.Being aggrieved, the co-accused Shivani Chopra, filed an

S.L.P(Crl.) before this Court, which was dismissed in limine. The

S.L.P. filed by the present appellant, however, was admitted vide

order dated 8.2.2010.

Hence, this present appeal.

3.Mrs. Kawaljit Kochar, learned counsel for the appellant, has

submitted that both the courts below have erred in convicting the

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Page 6 appellant, even though there is no evidence against him. In a case of

circumstantial evidence, the issue of motive to commit the crime in

question, is of paramount importance, which could not be established

in the instant case. The parameters laid down by this Court for

deciding such a case of circumstantial evidence, have not been

applied. The recoveries relied upon by the courts below, alleged to

have been made at the instance of the appellant have in fact, all been

planted and the appellant has falsely been enroped into the matter,

merely because he had an alleged intimate relationship with the co-

accused, Shivani Chopra, who was an employee of the deceased and

had allegedly also developed an intimate relationship with him.

Furthermore, no independent witness has been examined so far as the

recoveries are concerned. All the witnesses of recoveries are actually

police personnel. Thus, the judgments of conviction passed by the

courts below are liable to be set aside.

4.On the contrary, Shri Kamal Mohan Gupta, learned standing

counsel appearing for the State, has vehemently opposed the appeal,

contending that there is no justification for this Court to interfere with

the concurrent findings of fact that have been recorded by the courts

below. Of course, the present case is one of circumstantial evidence,

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Page 7 but with respect to the same, the chain of events is complete, and

every link thereof, is a pointer towards the guilt of the appellant. The

appellant has failed to furnish any explanation in relation to the

incriminating circumstances put to him, while recording his statement

under Section 313 of Code of Criminal Procedure, 1973 (hereinafter

referred to as the `Cr.P.C.’). The present appeal, thus, lacks merit and

is liable to be dismissed.

5.We have considered the rival submissions made by learned

counsel for the parties and perused the record.

6.The post-mortem of the dead body was conducted on

28.12.2002 by Dr. Renu Saroha, Medical Officer, General Hospital

Sohna. According to the post-mortem report, the following injuries

were found on the person of the deceased:

i) Cut incised wound on scalp left side 7 cm x 1.5

cm. Spindal shaped left frontal region, bone deep.

Reddish in colour. Extending from the hair line to be

posteriorally.

ii) Spindal shaped wound 4 cm x 1 cm left side of the

frontal region. Fracture of tempo frontal region bone.

Subdural hematoma was present.

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Page 8 iii) Incised wound on forehead between two eye brows

6 cm x.5 cm. Obliquely situated on the nasion.

iv) Incised cut wound of the nose horizontally incising

thoroughly nasal bone and cavity extending to the both

side of the face maxillary region and communicating

with the vertical wound as described in injury no.3 right

side of cheek to left side 12 cm x .5 cm bone deep.

Incising the nose completely disfiguring the face.

v) Incising cut wound on left cheek placed

horizontally. Extending horizontally from the left cheek

upto the base of the nose. 11 cm x 1 cm in length.

vi) Obliquely placed incised wound extending from

the right eye brow merging below with wound no.4 at

nasal level.

vii) Obliquely situated cut wound. Size of 7 cm x .5 cm

over the left cheek crossing the wound no.5 at

perpendicular .

viii) Cut wound incised of the left lower lip 4 cm x 1.2

cm Spindal shaped.

ix) Incised wound on right side starting from right

angle of mouth and going posteriorally 2 cm in front of

the right pinna.

x) Obliquely situated incised cut wound over to the

chin 4 cm x .5 cm.

xi) Cut incised wound of 13 cm x 2 cm extending

from the tragus left ear and going to interiorally midline

of neck. 4 cm below the chin.

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Page 9 xii) Incised irregular almost spindal shaped wound

over the neck. Extending from the anterior border of right

crapezius muscle to the opposite left crapezius border

anterior part. Cutting the voice box and major vessels of

neck on left side.

xiii) Superficial cut wound on left side of the shoulder

anteriorally 9 cm in size.

xiv) Cut wound on left side elbow joint front part

spindal shaped. Obliquely situated cutting skin and

muscle and blood vessels are exposed. 5 cm x 3 cm.

xv) Horizental incised cut wound on right arm

involving skin and muscle at the level of upper 1/3rd and

lower 1/3rd. 10 cm x 2 cm spindal shaped.

xvi) Spindal shaped cut wound on right elbow joint 11

cm x 5 cm involving skin, muscle and major vessels.

xvii) Spindal shaped wound on right forearm 5 cm x 2

cm involving skin facia and muscle region at the junction

of lower 1/3rd and upper 2/3

rd

.

All the injuries were anti-mortem in nature. In the opinion of

the Doctor, the cause of death was due to haemorrhage and shock

caused by the cutting of major blood vessels, as a result of injuries,

which were sufficient to cause death in the ordinary course of nature.

The duration of time taken to inflict such injuries was approximately

24 hours. Dr. Renu Saroha (PW.13), explained while being cross-

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Page 10 examined, that the injuries found on the person of the deceased could

have been caused by a sharp edged weapon and were the possible

result of stabbing. The possibility of use of two separate weapons

could not be ruled out, however, the said injuries could also have been

caused using only one weapon. Therefore, it is evident from the

aforesaid evidence that, the deceased was a victim of homicidal death.

7.Chander Shekhar Jain (PW.1), testified that he had gone to

identify the dead body of the deceased, but was unable to do so,

owing to the fact that his face had been mutilated. The next day, he

re-visited the said place, along with Mahender Jain, brother of the

deceased and thoroughly examined the dead body. They then

identified the same to be that of Ashok Jain.

8.Anil Garg (PW.2) deposed that Ashok Jain was a resident of the

United States of America and would visit India occasionally. Shivani

Chopra, the co-accused was an employee of Ashok Jain. He stated

that the deceased had informed him in December, 2002, that he would

be coming to Delhi on 26.12.2002 and that he would instruct him, at a

later date whether or not he would be required to come to receive him

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Page 11 from the Airport. He further gave the contact numbers (landline and

mobile) of Shivani Chopra both, in Delhi and in Mumbai.

9.Bijender Kumar (PW.3), who was in-Charge of the car park at

the Delhi Airport testified that on 26.12.2002, Car No.UP-32-AG

9991 remained parked at the Airport parking between 5.26 p.m. and

8.34 p.m.

10.Shambhu Chaudhary (PW.4), the Receptionist of Hotel Suji

International, Paharganj, Delhi deposed that the appellant and the co-

accused Shivani Chopra had stayed at his Hotel between 18-

19.11.2002, and then, between 7-8.12.2002 and yet again, on

26.12.2002, this time along with one Shri Sudhir Srivastava. This

witness provided proof of such stay, by producing requisite guest-log

registers and further identified both the said accused in Court.

11.Naresh Kapoor (PW.9), the proprietor of Ashoka Continental

Hotel, Paharganj, deposed that the appellant and co-accused, Shivani

Chopra stayed in the said hotel on 24.12.2002, upon providing fake

names and representing themselves as Munish Mathur and Shivani

Mathur respectively. Their stay here was proved by producing the

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Page 12 guest-log Register maintained for the purpose of keeping a record of

guests, in the normal course of business.

12.Narain Singh (PW.11), ASI made recoveries of several articles,

including cosmetic items, blood stained clothes of the appellant, a

gold chain and one gold kara on 11.1.2003 and 14.1.2003 on the basis

of a disclosure statement made by the appellant. The appellant and the

co-accused Shivani Chopra, identified the place where the dead body

was lying.

13.Inspector Shamsher Singh (PW.21), corroborated the testimony

of Narain Singh, ASI (PW.11) with respect to all material particulars.

He also supported the case of the prosecution by explaining how the

investigation was conducted, how he had taken readings of the said

mobile phone numbers belonging to the accused persons, and

therefore, concluded the said investigation.

14.Surender Mohan Jain (PW.14), brother-in-law of the deceased

deposed that the deceased was a Non Resident Indian. He would

however, visit India 2-3 times in a year. It came to the knowledge of

the said witness that the co-accused Shivani Chopra, would receive

the deceased at the Airport on the day of his arrival, on his particular

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Page 13 visit to India. Ms. Urvashi, a niece of Ashok Jain, deceased, informed

him that her father had talked to her on the mobile phone of Shivani

Chopra, the co-accused before his death. He also stated that Shivani

Chopra had told him that she had, in fact, gone to Airport to receive

the deceased, however, he never showed up. He further deposed that,

Shivani Chopra had developed illicit relations with the deceased.

15.Mahender Kumar Jain (PW.17), elder brother of the deceased

corroborated the testimony of Surender Mohan Jain (PW.14), and

further deposed that upon hearing the news regarding the death of the

deceased, he immediately went to General Hospital on 28.12.2002,

and identified the dead body of Ashok Jain. He also disclosed that at

the time that Ashok Jain had left the city of Mumbai, he was carrying

upon his person, jewellery, i.e., a gold chain, a pair of diamond rings,

various cosmetic articles and also cash.

16.Capt. Rakesh Bakshi (PW.22), provided proof regarding the

records of mobile phone numbers belonging to the accused persons.

Other witnesses also deposed in support of the case of the

prosecution and proved all material particulars.

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Page 14 17.When the appellant and the co-accused Shivani Chopra, were

examined under Section 313 Cr.P.C., they denied any involvement in

the said crime. The appellant explained that he was being falsely

implicated in this case. He also stated that in connection with the

same, he had been arrested 5 days prior to the alleged date of arrest

from Lucknow, and had since such date, been illegally detained. The

police had planted each of the alleged recoveries made by them. The

jewellery recovered, actually belonged to him. He deposed that he did

not know the deceased, Ashok Jain at all, and all alleged details of

calls etc., were supported by way of fabricated documents. A similar

version was given by the co-accused Shivani Chopra who stated that

the deceased Ashok Jain, was in fact, her family friend. He had

telephoned her father to inform him that he would visit their house at

Rohini, on 26.12.2002 but then he failed to show up. She had

absolutely no intimacy with the deceased. The alleged records of

phone calls etc. were untrue stories based on fabricated records. She

did not, in fact, own any of the telephone numbers, as shown as part

of the evidence on record.

18.The appellant also examined Samita Sinha (DW.1), and

Shailender (DW.2), both of whom are sales persons at Bharti

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Page 15 Jewellers, Mumbai and also, one Subhash, who is the proprietor of

Bharti Jewellers (DW.3), to prove that the jewellery recovered,

belonged to his family and not to the deceased Ashok Jain.

19.In the above backdrop, both the courts below have appreciated

the entire evidence and material on record and thereafter, have

convicted the appellant and the co-accused Shivani Chopra on the

basis of the following circumstances:

i) The intimate relations vis-a-vis Shivani Chopra and the

appellant, Munish Mubar as also between her and the deceased,

Ashok Jain.

ii) Shivani Chopra had knowledge that the deceased was coming

to Delhi on the evening of 26.12.2002 and she was to receive him,

upon his arrival, from the Delhi Airport.

iii)Shivani Chopra falsely informed Surender Mohan Jain (PW14),

that Ashok Jain had not arrived in Delhi at all, and thus, she was

unable to receive him at the Airport on the said day. On all prior

occasions, Anil Garg (PW2) would receive him at the Airport.

iv) Car No. UP-32-AG-999l belonging to the appellant was parked,

on the evening of 26.12.2002, at precisely 17:26:21 hours in the car

park of the Domestic Airport, Delhi and was taken therefrom, on the

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Page 16 very same day, at 20:34:50 hours and within 3 hours of such taking

away of the said car, the murder in question, is known to have taken

place. The said car was later recovered from the possession of the

appellant himself.

v) The calls made from mobile No.9818082l95 at 21:26:41 hours

on 26.12.2002, were routed through cell No.6572 which pertains to

the Badshahpur, Gurgaon Tower, which was situated in the vicinity of

the village Bhondsi, from where the dead body of Ashok Jain was

recovered.

vi) The records of hotel Suji International in Paharganj, Delhi

prove sufficiently that both the accused, along with one Sudhir

Srivastava (since the date of incident, proclaimed absconder), stayed

in the said hotel on several occasions, including the evening of

26.12.2002 between 3.40 p.m. and 11.55 p.m. The appellant Munish

Mubar, and Sudhir Srivastava also stayed in hotel Ashoka

Continental, Paharganj, Delhi on 24.12.2002, whereas the appellant

had also stayed in the said hotel along with the co-accused Sudhir

Srivastava on 25.12.2002, while representing themselves as Munish

Mathur, Shivani Mathur and Sunil Srivastava, respectively.

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Page 17 vii)There was sufficient motive to rob Ashok Jain of the valuables

and getting rid of him, as the main hurdle in the love affair between

the appellant and Shivani Chopra.

viii) There was telephonic communication between the accused

Shivani Chopra and the deceased on the day of occurrence of the said

incident and also prior thereto.

ix) There has been recovery of jewellery, cosmetic articles, a gold

chain, a gold kara etc. from the appellant, on the basis of disclosure

statement made by him.

x) Recovery of a torn vest, a blood stained hammer, one blood

stained knife and a blood stained pair of trousers was also made, in

pursuance of the disclosure statement made by the appellant on

13.1.2003.

xi) The act of absconding by the accused and ultimately the arrest of

the accused on 10.1.2003.

20.Undoubtedly, in a case of circumstantial evidence, all the

circumstances must be fully established and all the facts so

established, must be consistent with the hypothesis regarding the guilt

of the accused. The circumstances so established, should exclude

every other possible hypothesis except the one sought to be proved.

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Page 18 The circumstances must be conclusive in nature. Circumstantial

evidence is a close companion of factual matrix, creating a fine

network through which there can be no escape for the accused,

primarily because the said facts, when taken as a whole, do not permit

us to arrive at any other inference but one, indicating the guilt of the

accused.

21.If the case is examined in the light of the aforesaid settled legal

propositions, we are of the considered opinion that, there is nothing on

record to doubt the existence of the illicit relationship of the co-

accused Shivani Chopra with the deceased, Ashok Jain as also with

the appellant, as this fact has been fully established from the evidence

provided by several witnesses. It has further been proved that the

Santro Car belonging to the appellant was parked on 26.12.2002, at

the Delhi Airport for a duration of 3 hours, when the flight by which

Ashok Jain (deceased) was to arrive, was scheduled to land, and the

said car left after the arrival of such Jet Airways flight. The telephone

call records reveal the presence of the appellant in the Bhondsi village

area, i.e., the place of occurrence, at the relevant time of the incident.

The recoveries in the said case, were made upon the disclosure

statement of the appellant. Some of the articles found, had human

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Page 19 blood on them and the same connects the appellant to the said crime.

The appellant failed to furnish any explanation whatsoever in relation

to any of the above, when examined under Section 313 Cr.P.C.

22.In a case of circumstantial evidence, motive assumes great

significance and importance, for the reason that the absence of motive

would put the court on its guard and cause it to scrutinize each piece

of evidence very closely in order to ensure that suspicion, emotion or

conjecture do not take the place of proof. However, the evidence

regarding existence of motive which operates in the mind of an

assassin is very often, not within the reach of others. The said 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

such evil thought, in the mind of the assassin. In a case of

circumstantial evidence, the evidence indicating the guilt of the

accused becomes untrustworthy and unreliable, because most often it

is only the perpetrator of the crime alone, who has knowledge of the

circumstances that prompted him to adopt a certain course of action,

leading to the commission of the crime. Therefore, if the evidence on

record suggest sufficient/necessary motive to commit a crime, it may

be conceived that the accused has committed the same. (See: Subedar

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Page 20 Tewari v. State of U.P. & Ors., AIR 1989 SC 733; Suresh Chandra

Bahri v. State of Bihar, AIR 1994 SC 2420; and Dr. Sunil Clifford

Daniel v. State of Punjab, JT 2012(8) SC 639)

23. The issue of non-examination of independent witnesses and

reliance upon the deposition of police officials as “Panch witnesses”

was considered at length by this Court in State, Govt. of NCT of

Delhi v. Sunil & Anr., (2001) 1 SCC 652, wherein this Court held as

under:

“….But if no witness was present or if no

person had agreed to affix his signature on

the document, it is difficult to lay down, as a

proposition of law, that the document so

prepared by the police officer must be

treated as tainted and the recovery evidence

unreliable. The court has to consider the

evidence of the investigating officer who

deposed to the fact of recovery based on the

statement elicited from the accused on its

own worth.

We feel that it is an archaic notion that

actions of the police officer should be

approached with initial distrust………At any

rate, the court cannot start with the

presumption that the police records are

untrustworthy. As a proposition of law the

presumption should be the other way

around. That official acts of the police have

been regularly performed is a wise principle

of presumption and recognised even by the

legislature. Hence when a police officer

gives evidence in court that a certain article

was recovered by him on the strength of the

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Page 21 statement made by the accused it is open to

the court to believe the version to be correct

if it is not otherwise shown to be unreliable.

It is for the accused, through cross-

examination of witnesses or through any

other materials, to show that the evidence of

the police officer is either unreliable or at

least unsafe to be acted upon in a particular

case. If the court has any good reason to

suspect the truthfulness of such records of

the police the court could certainly take into

account the fact that no other independent

person was present at the time of recovery.

But it is not a legally approvable procedure

to presume the police action as unreliable to

start with, nor to jettison such action merely

for the reason that police did not collect

signatures of independent persons in the

documents made contemporaneous with such

actions.”

24. It is obligatory on the part of the accused, while being examined

under Section 313 Cr.P.C. to furnish some explanation with respect to

the incriminating circumstances associated with him, and the Court

must take note of such explanation, even in a case of circumstantial

evidence, so to decide, whether or not, the chain of circumstances is

complete. The aforesaid judgment has been approved and followed in

Musheer Khan v. State of Madhya Pradesh, (2010) 2 SCC 748.

(See also: The Transport Commissioner, A.P., Hyderabad & Anr.

v. S. Sardar Ali & Ors., AIR 1983 SC 1225).

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Page 22 25.In view of the aforesaid discussion, it is evident that in spite of

the fact that in case there is no independent witness of recoveries and

panch witnesses are only police personnel, it may not affect the merits

of the case. In the instant case, the defence did not ask this issue in the

cross-examination to Inspector Shamsher Singh (PW.21) as why the

independent person was not made the panch witness. More so, it was

the duty of the appellant to furnish some explanation in his statement

under Section 313 Cr.PC., as under what circumstances his car had

been parked at the Delhi Airport and it remained there for 3 hours on

the date of occurrence. More so, the call records of his telephone make

it evident that he was present in the vicinity of the place of occurrence

and under what circumstances recovery of incriminating material had

been made on his voluntary disclosure statement. Merely making a

bald statement that he was innocent and recoveries had been planted

and the call records were false and fabricated documents, is not

enough as none of the said allegations made by the appellant could be

established.

In view of the above, we do not find any force in this appeal.

The appeal is therefore, dismissed accordingly.

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Page 23 ……..………………………J.

(Dr. B.S. CHAUHAN)

……………….

………………………………………J.

(FAKKIR MOHAMED IBRAHIM KALIFULLA)

New Delhi,

October 4, 2012

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