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CASE NO.:

Appeal (crl.) 130 of 2001

PETITIONER:

Gurpreet Singh

RESPONDENT:

State of Haryana

DATE OF JUDGMENT: 12/09/2002

BENCH:

Umesh C. Banerjee & Y.K. Sabharwal.

JUDGMENT:

J U D G M E N T

BANERJEE, J.

The appellant Gurpreet Singh an Indian Air Force personnel had a

love marriage with one Kalpna, a Nurse in a Military Hospital (since

deceased). Later the facts reveal that Gurpreet left his job from Indian

Air Force and joined as Assistant Vigilance Officer in Maruti Udyog in

Gurgaon and Kalpna was also adjusted in the same Maruti Udyog in a

section known as Bharat Seats. They lived in House No.C-2-113/4

D.L.F. Phase-I, Qutab Enclave, Gurgaon and had a son Sudeep out of

their lawful wedlock.

It appears that the parties to the said marriage did not pull on well

and the deceased and the appellant made a joint petition (Ex.P.N.) before

the learned District Judge, Gurgaon under Section 13-B of the Hindu

Marriage Act seeking divorce by mutual consent on 14.12.1993; though

concededly they lived under one roof till Kalpna breathed her last as

noticed hereinbefore in this judgment. The next date fixed in the

petition was 17.7.1994.

Incidentally, on the further factual score it appears that purchase

of flat No.C-2-113/4, Gurgaon (Ex.A4) prior to filing of consent petition

however was in the joint name of both the spouses. The deceased thus

had a half share in the flat and the consent petition for divorce created a

bounden obligation for the appellant to pay a sum of Rs.3,00,000/- to the

wife.

Materials available in the matter depict that around 11.00 or 11.30

O'clock in the night of 13/14.2.1994, there were some sounds of shrieks

and cries from the house of Gurpreet Singh and Ashok Mazumdar,

(P.W.1), a Businessman, living in House No.113/3-2-2 D.L.F. Colony,

Phase I, Gurgaon, not being aware of the happenings got up from sleep

and saw from the window that the smoke was emitting from the said

apartment and he noticed the appellant and his servant being present

there. The neighbourly gesture prompted him to telephone the police as

well as the fire brigade and Sub Inspector Bir Singh (P.W.5), on receipt

of the wireless message from Police Station Sadar, Gurgaon reached the

spot located in the area of Silver Oak Apartments, Qutab Enclave. The

Sub Inspector found the appellant-accused sitting in his room while the

victim Kalpna lying in burnt condition in another room. The two rooms

were burnt but the room in which the appellant-accused was sitting was

not having marks of burns. The records depict that the Sub Inspector

despatched a ruqa that Kalpna had been murdered by setting her on fire

on the basis of which formal FIR Ex.PG/1 was recorded by S.I.

Devinder Singh.

The burnt remains of the clothes of the deceased were taken into

possession by Inspector Murari Lal, (PW.7) who, as the records depict,

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recorded the statement of Ashok Mazumdar (Ex.PA) and that of one Raj

Kumar Chawla (since deceased). Though 10/12 persons also gathered

at the spot but they were not prepared to state or disclose anything.

Records further depict that preparation of site plan (Ex.PQ) as also the

inquest report (Ex.PP). Five match sticks in a match box were taken into

possession (Ex.PJ) along with a plastic can with cap and a writing pad

(vide recovery memos Exs.PK, PL and PM). After the photographs

Ex.PT/1 to PT/4 of the dead body were taken, the same was sent for

post-mortem examination.

On 16.2.1994, the appellant was arrested because Shri Ashok

Mazumdar, PW.1 had already mentioned in his statement to the police

that about 15/16 days prior to the occurrence he had seen Gurpreet Singh

appellant giving beatings to Kalpna and she was bleeding from her

mouth and obviously he expected his hand in the murder. There was the

presence of the accused on the place of occurrence with unusual

calmness without any attempt even to explain how the occurrence took

place obviously led to the inference that he and none else had a hand in

the crime.

A site plan according to scales was got prepared from PW.3 Mool

Chand Punia, a Draftsman, who gave a note in the site plan that the

deceased was stated to be found in a complete sitting posture. The

articles taken from the scene of occurrence were despatched to the

Forensic Science Laboratory.

On 15.2.1994 at 10.00 A.M., autopsy on the dead body of Kalpna

deceased was conducted by Dr. Sanjay Narula, PW.2 and he observed

the following:

"No ligature mark on the neck could be commented

because of charring. It was dead body of an average

built and nourished female wearing yellow metallic

chain in neck and yellow metallic kara on the left

wrist. Body was totally burnt except a tuft of hair.

Puggilistic attitude of the body was there. There was

no clothes over the body. There was no smell or

kerosene or any other material from the body or hair.

The examination of scalp revealed that it was burnt

except a tuft of hair in the occipital region.

The body above the level of pelvis was totally charred.

Deeper muscles of abdomen and chest also charred

exposing bone at places. Both lower limbs were deep

to superficially burnt showing red line of demarcation.

Larynx and tracheae were healthy but containing block

particles. Heart was full of cheery red colour blood.

The duration between injuries and death was

immediate."

In the opinion of the Doctor, the death was due to 100% burns

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

On 17.2.1994, at 10.00 A.M. the said doctor also medico legally

examined the appellant and found the following injuries on his person:-

(1) Infected superficial burn wound with light brown scab

with few pus points, size 3 cm X 1 cm over bridge of

nose.

(2) 3 cm X 2 cm infected burn wound with same features

as one over left ala of nose.

(3) 2 mmX 1 mm wound with same features as one over

left side of face.

(4) Circular .5 cm diameter wound with same features as

one over forehead just above medical end of right eye

brow.

(5) 7 cm X 5 cm blister over sole of left foot. No open

wound slight erythema around blister. This blister

extends at base of fourth and fifth toe.

(6) 3 cm diameter blister over left border of left foot.

In the opinion of the Doctor the injuries were simple in nature

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having been caused by burns.

In view of the aforesaid evidence collected against the appellant,

he was put to trial for murder of his wife Kalpna. The entire evidence

was put him in his statement under Section 313 of the Code of Criminal

Procedure. He mostly claimed ignorance regarding the circumstances in

which the death of the deceased took place. He took up the plea that in

fact he along with DW.1 Ravinder Nath Puri had taken the dinner

together around 9.00 P.M.in his Apartment and had gone to Gymkhana

Club where he received a telephonic message around 11.00 P.M. from

Raj Kumar a neighbour of the accused that the house was emitting fire.

He and Ravinder Nath Puri, DW.1 reached the scene of occurrence and

in his attempt to extinguish the fire, received burn injuries noticed

above. He also stated that his wife had no grouse against him and he

had reached much after the place got ablazed and that he was involved

falsely. The learned trial Judge did not place reliance on the story set up

by the appellant-accused. The conclusions arrived at were that the

appellant was not innocent as he claimed to be, but was the actual

offender - The liability of loan, differences he had with his wife and the

deceased having a half share in the apartment, led to the job of

eliminating her. According to the findings the appellant took a false plea

of alibi and had nothing to do in Gymkhana Club late in the night. As a

matter of fact, the learned Sessions Judge recorded that the burns on the

appellant were received when he was trying to burn the wife rather than

was extinguishing the fire and the pose of the deceased sitting on a sofa

as shown in photographs (Ext. PT/1 to PT/4) was such that if she had

either committed suicide she would have run here and there and posture

could not have been the way as it transpires from the records. This is

more so by reason of the factum of presence of the appellant in the

house when he committed the act of murdering his wife, observed the

learned Judge. Accused did not disclose anything nor gave any

explanation of the situation confronted to him and the only inference that

could be drawn was that he committed the crime.

On the basis of the aforesaid the appellant was convicted under

Section 302 of the Indian Penal Code and was sentenced to undergo

rigorous imprisonment for life.

In the appeal against the order of conviction and sentence, the High

Court rejected the contentions in support of the appeal with a positive

finding that there exists sufficient circumstantial evidence on record to

connect the accused with the sordid crime he committed.

Before proceeding further however and since the injuries as

noticed above relate to burn, we feel it expedient to note the

observations of this Court in Arvind Singh v. State of Bihar (2001 (6)

SCC 407) wherein one of us (Banerjee, J.) dealt with such injuries in

quite some detail. This Court observed :

"6. Burn injuries are normally classified into

three degrees. The first being reddening and

blistering of the skin only; second being charring

and destruction of the full thickness of the skin;

third being charring of the tissues beneath the

skin, e.g. fat, muscle and bone.

7. Be it noted here that if the burn is of a

distinctive shape a corresponding hot object may

be identified being applied to the skin and thus

abrasions will have distinctive patterns but in the

event a burn injury is the cause of death then 60%

cases are of septicaemia and 34% cases are of

bronchopneumonia. Where infection was by

pseudomonas pyocyanea, spread to unburnt skin

ulceration may occur, and internal infection by

this organism is especially liable to damage the

walls of blood vessels. Gram-negative shock may

also occur. The external examination in the

normal cases are found in the body being removed

from a burnt building and in the event of such a

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removal the cause of death would be inhalation of

fumes rather than septicaemia as noticed above.

In the event the body is not removed from the

room and same remains in situ, an examination of

the scene must be attempted, as with any other

scene of suspicious death, note being taken as

regards the position of the body, clothes

remaining if any and identifiable objects in the

room and so on. The examination of the burns is

also directed to ascertain their position and depth,

as to whether they were sustained in life or not,

and whether their situation gives any indication of

the path taken by the flames or the position of the

body when the fire started. If the body is very

severely burnt then all the skin surface may be

destroyed, even sometimes making it rather

difficult for identification of the body. A body

that is badly burnt assumes the appearance known

as "pugilistic attitude" and this is due to heat

stiffening and contraction of the muscles, causing

the arms to become flexed at the elbows and the

hands clenched, the head slightly extended and

the knees bent. The appearance resembles the

position adopted by a person engaged in a fight

and has led on occasions to suspicion that the

death occurred during some violent crime. In

fact, of course, the body will assume this position

when the fire started. The other aspect of the burn

injury is that heat ruptures may be produced.

These are splits of the skin, caused by contraction

of the heated and coagulated tissues, and the

resultant breaches look like lacerated wounds.

They are usually only a few inches, but may be up

to 1 or 2 ft in length. Normally they lead to no

difficulty in interpretation, since they occur only

in areas of severe burning, and normally over

fleshy areas of the body, like calves and thighs

where lacerations are uncommon. However,

when they occur in the scalp they may cause

greater difficulties. They can usually be

distinguished from wounds inflicted before the

body was burnt, by their appearance, position in

areas of maximum burning and on fleshy areas,

and by the associated findings on internal

examination. (See in this context Taylor's

Jurisprudence.)

8. Although shock due to extensive burns is the

usual cause of death, delayed death may be due to

inflammation of the respiratory tract caused by the

inhalation of smoke. Severe damage, at least to

the extent of blistering of the tongue and upper

respiratory tract, can follow the inhalation of

smoke."

Apropos the burn injury, the report of the Forensic Science

Laboratory, Haryana, seem to be of some relevance, as such the same is

set out hereinbelow:

"RESULT OF EXAMINATION

(1) Residues of petroleum were detected in Exhibits 1, 2, 3,

4 and 5.

(2) Carbon monoxide was detected in Exhibit-6 (Blood.)"

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In this context, the observations of the High Court in the judgment

impugned ought also to be noticed : The High Court did delve into the

matter rather elaborately and with due importance it deserved. The

High Court stated :

"The most important factor in the case remains to

be that the photographs Ex.PT/1 to PT/4 are of the

most vital importance. Kalpna deceased had been

shown in a sofa Ex.P1 in a sitting posture i.e. like

a pugilistic pose. She is in an absolute sitting

pose on a sofa. If one looks towards the side of

the head the entire flames had gone on the wall

towards the head. The deceased Kalpna has not

moved here or there. If she had moved here or

there the burns would have been on other portion

of the wall of the room. These photographs

Exs.PT/1 to PT/4 as mentioned above were not

being brought in evidence and were brought on

record during the course of evidence on payment

of costs. There was a clever attempt on the part of

the appellant that he did not want these

photographs to come on record. As already

indicated that there was no one who could be

taking interest to prosecute the appellant. This

posture of the deceased clearly established that if

the case had been that of suicide she would have

tried to struggle and move here and there rather

than to be killed on the sofa itself. So these

photographs are important piece of evidence in

the chain of circumstances. To recapitulate the

situation, the death of the deceased was

immediate after the burns. The visual

examination of the scene of occurrence found by

the Investigating Officer who prepared the inquest

report Ex.PP revealed that the fire had been so

intense that even the blades of the electrical fan

were found to be moulded. Window of the room

was burnt and door frame and door closer were

also burnt. Smell of petrol had been found in the

articles sent to the Forensic Science Laboratory

vide report Ex.PO."

Coming back on to the merits of the matter now, it thus appears

that there is no direct evidence available so as to connect the appellant

with the incident but only circumstantial evidence : It is however now

well settled that while circumstantial evidence alone and by itself to

form the basis of conviction, provided, however, there is no snap in the

chain of events: the chain of events must thus be complete in such a way

so as to point to the guilt of the accused person and to none others it is

not a mere matter of surmise or conjecture but the events ought to be so

tale-tale that one cannot but come to the conclusion that accused is the

guilty person. Standard of proof has thus to be at a much higher degree

lest an innocent person gets the blame therefor. The approach of the

Court thus ought to be extremely cautious and upon proper

circumspection as regards the appraisal of the available evidence on

record. Various citations were referred to by the parties during the

course of hearing, but the law seems to be so well-settled, that we may

not detain ourselves on that score.

At this juncture a brief recapitulation of events may be

worthwhile so as to assess the situation ourselves in its proper

perspective. Mazumdar heard a shriek gets up and finds smoke

coming out of Ahluwalia's window : on seeing the smoke, came out of

the house and met Ahluwalia and the servant who, in fact, said to have

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informed him of the fire in the house and thereupon informs the Police

as also the fire brigade this is the statement said to have been recorded

by the Police under Section 161 Cr.P.C.: In the witness box however,

there is some variation and Mr. K.T.S. Tulsi, the learned Senior

Advocate appearing in support of the appeal has been rather emphatic

that reliance on Section 161 statement in preference to the other

evidence available from Mazumdar has been the key feature in the

matter of acceptance of the prosecutor's version rather than a total

disbelief of the same.

Incidentally, it is now well-settled that in the event of a portion of

evidence not being consistent with the statements given under 161 and

the witness stands declared hostile that does not, however, mean and

imply total rejection of the evidence. The portion which stands in favour

of the prosecution or the accused may be accepted but the same shall be

subjected to close scrutiny. It is in this context the observations of this

Court in State of U.P. vs. Ramesh Prasad Misra & Anr. ( 1996 (10) SCC

360) seem to be rather apposite and the same is thus set out

hereinbelow :

"7. The question is whether the first respondent

was present at the time of death or was away in

the village of DW 1, his brother-in-law. It is

rather most unfortunate that these witnesses, one

of whom was an advocate, having given the

statements about the facts within their special

knowledge, under Section 161 recorded during

investigation, have resiled from correctness of the

versions in the statements. They have not given

any reason as to why the investigating officer

could record statements contrary to what they had

disclosed. It is equally settled law that the

evidence of a hostile witness would not be totally

rejected if spoken in favour of the prosecution or

the accused, but it can be subjected to close

scrutiny and that portion of the evidence which is

consistent with the case of the prosecution or

defence may be accepted. One clinching

circumstance, viz., that PW 2 and PW 6 had heard

some quarrels in the house of the respondents and

the deceased was crying out, is not on record as

substantive evidence. PW 2 and PW 6 had no

regard for truth; they fabricated the evidence in

their cross-examination to help the accused which

did not find place in their Section 161 statements

that they had seen one man of white complexion

and aged between 30 to 35 years, going to the

house of the deceased on the fateful night and

leaving the house at 8.00 a.m. on the next day."

Next, however, is the plea of alibi as raised by the appellant when

the husband stated that after the dinner he alongwith a friend went to

Gymkhana Club for a coffee and it is only at the club that he was

informed of the fire in the house which prompted the appellant to return

to his house immediately. This plea of alibi stands disbelieved by both

the courts and since the plea of alibi is a question of fact and since both

the courts concurrently found that facts against the appellant, the

accused, this Court in our view, cannot on an appeal by special leave go

behind the above noted concurrence finding of fact. This stands well

settled for about five decades and reference may be made to the decision

of this Court in Thakur Prasad vs. State of Madhya Pradesh(1954

Crl.Law Journal 261).

Admittedly there is no eye-witness available in the matter under

consideration and the prosecution case is sought to be established from

the circumstantial evidence and it is in this sphere the settled law as

noticed above is that circumstances from which the conclusion of guilt

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is drawn should be proved and thus circumstances must be conclusive in

nature. The established circumstances should also be complete and there

should not be any missing link in the chain of evidence. The court ought

thus to scrutinise the evidence and deal with each circumstance and

thereafter find the chain of the established circumstances being

complete, in the event, the answer is in the affirmative, there should not

be any hesitation in the matter of return.. of a verdict of guilt on the basis

of circumstantial evidence. In the event, however, there is a snap in the

chain and the conclusion may not steadfastly point or reach the accused,

the latter is entitled to a benefit of doubt. In this context the

observations of this Court in Kundula Bala Subrahmanyam & Anr. vs.

State of Andhra Pradesh (1993 (2) SCC 684) lends credence to the view

expressed above.

It is indeed a relevant fact in the contextual facts that parties

admittedly, were having estranged relationship : As a matter of fact,

divorce proceedings has already been initiated a payment of

Rs.3,00,000/- is to be effected to the wife by the husband and this is

being consented to in writing since divorce was by mutual consent of the

parties.

It is to be noticed that whereas there is no eye-witness account but

the incriminating conduct and activity of the accused have been proved

by overwhelming evidence. The investigating officer found the

appellant sitting in the other room and the body of the wife totally burnt

in a sitting posture that of course goes on well with the Medical

Jurisprudence as noticed above since heat would have the effect of

stiffening and contraction of muscle causing the arms to become flex

and knees bent. The photographs produced before the Court show the

devastation of fire, obviously a definite attempt to see that one does not

survive in any event. The appellant-accused has not offered any reason

nor explanation except a plea of alibi which the High Court ascribed to

be as false denial as noticed hereinbefore. The chain of events dispels

any doubt as sought to be suggested by Mr. Tulsi and there seems to be

sufficient evidence on record to connect the appellant with a brutal

killing of a wife, the motive of which is apparent.

The social evil popularly described as bride-burning thus does not

show a descending graph in spite of the legislature stepping up and

introducing penal provisions therefor. The sordid tale of young girls

becoming victims of lust for money and other materialistic objects

continues the appeal in the present case thus is also no exception.

On the wake of the aforesaid, we are unable to record our

concurrence with the submissions of Mr. Tulsi. The appeal therefore

fails. The conviction and sentence passed against the appellant as

confirmed by the High Court is upheld and the appeal is dismissed. The

appellant to serve out the sentence.