Sukhpal Singh vs Nct Of Delhi

2024 INSC 385 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 55 OF 2015 SUKHPAL SINGH ….APPELLANT(S)

VERSUS

NCT OF DELHI ….RESPONDENT(S)

JUDGMENT

Mehta, J.

1. The instant appeal is directed against the judgment dated 7th

January, 2010 passed by the High Court of Delhi in Criminal

Appeal No. 296 of 2003 whereby the appeal filed by the appellant

against the judgment and order of conviction and sentence dated

6th March, 2003 passed by the learned Additional Sessions Judge,

Karkardooma Courts, Delhi(hereinafter being referred to as the

‘trial Court’) was rejected.

2. By the said judgment, the trial Court convicted the accused

appellant for the offence punishable under Section 302 of the Signature Not Verified Indian Penal Code, 1860(hereinafter being referred to as the ‘IPC’) Digitally signed by Deepak Singh Date: 2024.05.07 13:17:28 IST Reason: 1 and sentenced him to life imprisonment and fine of Rs.2000/-(in

default further rigorous imprisonment for six months).

3. Leave was granted by this Court in this matter on 8th

January, 2015 and the accused appellant was released on bail on

furnishing bail bonds to the satisfaction of the trial Court.

Brief facts:-

4. The accused appellant was married to Usha and three

children were born out of the wedlock. However, the spouses got

embroiled in a matrimonial strife and thus the appellant left

company of his wife Usha and started residing at his village Khatta,

U.P.

5. The officers of Police Station Bhajan Pura received a wireless

message on 20th May, 1990 from the PCR regarding an incident

which had taken place outside the shops of Rori and Badarpur.

Acting on the said information, Head Constable Mohan Lal,

Constables Jai Pal, Bhagwan Dass and Ramesh Chand along with

Inspector Ishwar Singh reached House no. J-387, Gali No. 14,

Kartar Nagar, Delhi where Usha w/o Sukhpal(the appellant herein)

was found lying dead on a cot in a room of the said house. On

cursory inspection, abrasions, scratches and other injury marks

2 associated with bleeding were noticed on the neck, mouth,

shoulder and private parts of the deceased Usha. Marks of

dragging were also found on the right leg below the knee. Strips of

tablets were found scattered around the cot on which the dead

body was lying. The police officials claim to have recovered a

handwritten note(Exhibit PW-12/E) from the crime scene bearing

a recital indicating that the scribe was the killer of Usha. The

prosecution alleges that the said note was written by the accused

appellant.

6. Statement(Exhibit PW-1/A) of Ashok Kumar Pathak, resident

of House No. J-386, Gali No. 14, Kartar Nagar, Delhi was recorded

by the police officials on 20th May, 1990 wherein he stated that he

was residing in the immediate vicinity of House No. J-387, Gali No.

14, Kartar Nagar, Delhi, where Usha with her husband

Sukhpal(accused appellant) and three children had been residing

for the last 3-4 years. Ashok Kumar Pathak was serving with M/s.

R.P. Associates and that he had got Sukhpal employed in that very

firm. Sukhpal suspected his wife Usha of infidelity which often led

to quarrels between them and, therefore, Sukhpal left his wife and

children and started residing in village Khatta, U.P. He used to

commute from the village for attending to his job. Sometimes, he

3 would also come and stay with Usha. Four days prior to the alleged

occurrence, Sukhpal had visited Usha and on that day, Usha’s

sister(Sudha) had also come there. Sukhpal quarrelled with Usha

and went away. On the next day, Usha’s sister, Sudha(PW-10) took

the three children of Usha and went to her house. On the day prior

to incident, i.e., on 19th May, 1990, in the evening when Ashok

Kumar Pathak had returned from duty and got free after having

his meals, at about 9.30 p.m., he saw that Sukhpal had come to

visit Usha on his cycle. The spouses were talking while sitting on

a cot in the courtyard. He went to the terrace for sleeping and after

some time, it started raining so he came downstairs and saw that

Sukhpal and Usha had also gone inside their room. The next

morning i.e. 20th May, 1990, while he was carrying out his daily

chores, he saw Sukhpal’s cycle parked in the courtyard and

presumed that he and Usha were inside the house. He did not see

any movement in the house for the entire day and even at about

5.30 p.m., he saw the cycle of Sukhpal parked at the same place

but neither Sukhpal nor Usha were to be seen. So, he called out

from outside, but nobody responded, on which he went into the

room and found Usha lying dead on a cot. Sukhpal was not present

there. He informed the neighbours who, in turn, called the police.

4 He bore a suspicion that Sukhpal(appellant herein) might have

killed Usha sometime during the night and had fled away. This

statement was taken as a complaint and based thereupon, FIR No.

213 of 1990(Exhibit PW-13/F) came to be registered at P.S.

Bhajanpura for the offence punishable under Section 302 IPC.

7. The dead body of Usha was subjected to autopsy and the post

mortem report(Exhibit PW-15/A) was received with a pertinent

opinion that cause of death was “Asphyxia resulting from manual

strangulation”. A confession letter/note(Exhibit PW-12/E) was

found below the cot where the dead body was lying and it was

seized vide memorandum(Exhibit PW-13/B) and spot inspection

memo(Exhibit PW-12/B) was prepared.

8. The Investigating Officer(PW-13) collected two letters(Exhibit

PW-12/C and PW-12/D) purportedly written by the accused

appellant from the employer namely Sanjiv Jain(PW-8). Specimen

Pad(Exhibit PW-13/O) of the employer was also collected and

seized vide memorandum(Exhibit P-13/N).

9. The prosecution alleges that the accused appellant fled away

from the crime scene. Efforts were made to trace him out without

any success and thus proceedings under Section 82 and Section

83 of the Code of Criminal Procedure, 1973(hereinafter being 5 referred to as ‘CrPC’) were initiated against him. The accused

appellant was declared to be a proclaimed offender and a charge

sheet came to be filed against him under Section 299 CrPC by

showing him to be an absconder. As per the prosecution case, the

complainant Ashok Kumar Pathak, Head Constables Mohan Lal

and Surender Kumar and Inspector Bal Kishan were examined on

oath in proceedings under Section 299 CrPC and the file was

consigned to the record room.

10. The accused appellant could be apprehended on 9th August,

2000 i.e. nearly after ten years of the incident. He gave a disclosure

statement pointing out the place of incident. His specimen

handwritings(Exhibits PW-5/D, 5/E and 5/F) were obtained while

he was in police custody. Thereafter, the confession note(Exhibit

PW-12/E), the specimen handwritings(Exhibits PW-5/D, PW-5/E

and PW-5/F) along with admitted handwritings(Exhibits PW-12/C

and PW-12/D)(collected from the employer of accused appellant)

were sent to FSL for comparison. The handwriting expert(PW-24)

issued a report(Exhibit PW-12/F) opining that the confession

letter/note(recovered from the crime scene) was in the handwriting

of the accused appellant.

6

11. A supplementary charge sheet came to be filed against the

accused appellant for the offence punishable under Section 302

IPC. The trial Court framed charge against the accused appellant

for the said offence. He pleaded not guilty and claimed trial. The

prosecution examined 24 witnesses and exhibited 48 documents

to support its case.

12. It is relevant to mention here that the complainant Ashok

Kumar Pathak, was not produced for deposition in the trial which

resumed after the arrest of the accused appellant. The trial Court

held that the non-examination of complainant Ashok Kumar

Pathak was not a deliberate act of the prosecution and rather the

same was beyond the control of prosecution. The trial Court

further found that complainant Ashok Kumar Pathak was

examined on oath on 17th July, 1991 in proceedings under Section

299 CrPC. In this sworn statement, Ashok Kumar Pathak proved

his signature on the statement[Exhibit PW-1/A(which led to

registration of FIR)] made by him to the police on 20th May, 1990

and gave a detailed account of the sequence of events witnessed

by him. The complainant Ashok Kumar Pathak could not be

examined in the trial proceedings post arrest of the accused as he

7 could not be found at the address given in the FIR despite all

sincere efforts.

13. The trial Court held that since Ashok Kumar Pathak could

not be located despite genuine efforts, his sworn deposition

recorded in absence of the accused appellant was liable to be read

in evidence as per the provisions of Section 299 CrPC. Accordingly,

the said statement was relied upon as a piece of incriminating

evidence against the accused appellant.

14. The trial Court also placed reliance on the confession

note/letter(Exhibit PW-12/E) holding that the same was found to

be in the handwriting of the accused appellant by the handwriting

expert(PW-24) vide report(Exhibit PW-12/F). The said confession

was treated to be an admission and a strong link of incriminating

circumstantial evidence against the appellant.

15. Placing reliance upon the evidence of Ashok Kumar Pathak

recorded in proceedings under Section 299 CrPC and the evidence

of the handwriting expert(PW-24), the trial Court held the

confession note(Exhibit PW-12/E) to be an unimpeachable piece

of evidence sealing the fate of the accused. Corroboration thereto

was sought from the evidence of Sudha(PW-10), sister of the

deceased Usha. By relying on these incriminating links of 8 circumstantial evidence, the trial Court proceeded to convict and

sentenced the accused appellant as above vide judgment dated 6th

March, 2003.

16. The appeal preferred by the accused appellant in the High

Court of Delhi was rejected by learned Division Bench of High

Court vide judgment dated 7th January, 2010 holding that the

confession note(Exhibit PW-12/E) written by the accused

appellant proved his culpability in the crime. The prosecution had

established that the accused appellant was in company of the

deceased Usha at her house where she was murdered in the

intervening night of 19th and 20th May, 1990. The prosecution also

established that the deceased was done to death by violence in the

said intervening night and that the accused appellant had

absconded to flee from justice which established his guilty

conduct.

17. The accused appellant has challenged the above judgment

affirming his conviction and sentence through this appeal by

special leave.

Submissions on behalf of the appellant: -

18. Learned legal aid counsel appointed by Supreme Court Legal

Services Committee(SCLSC) for representing the appellant

9 advanced extensive submissions to assail the impugned judgment.

He urged that:-

(i) The trial Court as well as the High Court

committed grave factual error in holding that

complainant Ashok Kumar Pathak was examined on

oath in proceedings under Section 299 CrPC. As per

learned counsel, this finding is totally contrary to the

record because the statement of complainant Ashok

Kumar Pathak relied upon by the trial Court and the

High Court is actually the statement of the said witness

recorded by the SHO, PS Bhajan Pura under Section 161

CrPC which was proved by the Investigating Officer(PW-

13) in proceedings under Section 299 CrPC.

(ii) The confession note(Exhibit PW-12/E) is a

fabricated piece of evidence because the prosecution did

not make any endeavour to get the two admitted

documents(Exhibit PW-12/C and PW-12/D) collected

from the employer of the accused appellant, i.e., Sanjiv

Jain(PW-8) compared with the confession note(Exhibit

PW-12/E). This contention was made without prejudice

to the plea that the very process of collecting these

10 documents is under a cloud of doubt because the

Investigating Officer(PW-13) could not have had any idea

that the accused had worked in M/s. R.P. Associates.

(iii) The handwriting expert’s report(Exhibit PW-12/F)

and the testimony of the handwriting expert(PW-24) is

not reliable, since the expert did not give any opinion

after comparing the admitted writings(Exhibit PW-12/C

and PW-12/D)(seized from the employer of the accused

appellant) with the confession note(Exhibit PW-12/E).

(iv) Without prejudice to the above, learned counsel

submitted that from a visual comparison of the

confession note(PW-12/E) and the specimen

handwritings of the accused(Exhibit PW-5/D, PW-5/E

and PW-5/F), it would become clear that there is no

similarity whatsoever in the two sets of handwritings so

as to conclude with any degree of certainty that the

scribe of these documents was one and the same. He

thus urged that the report(Exhibit PW-12/F) of the

handwriting expert(PW-24) is unreliable and cannot be

pressed into service for affirming the guilt of the

accused.

11

(v) He urged that the evidence of Sudha(PW-10) is

totally unreliable and not trustworthy and deserves to be

discarded. It was admitted by the prosecution that the

accused appellant and Usha had divorced each other

and thus it is totally unbelievable that the accused

appellant had come and stayed with Usha, few days

before the incident as claimed by Sudha (PW-10). He

urged that the evidence of Sudha(PW-10) is not

trustworthy and deserves to be discarded.

(vi) The claim of the prosecution that the accused

appellant was absconding is totally unfounded because

in the FIR, it was clearly mentioned that the accused

appellant after divorcing deceased Usha had started

residing in his village Khatta, U.P. However, the

Investigating Officer(PW-13) made no effort whatsoever

to apprehend the accused appellant from his village.

(vii) It has been admitted by material prosecution

witnesses that deceased Usha was indulged in sex trade

and that Sandeep Kumar used to solicit her services.

Sandeep Kumar and Rajbir Singh(PW-14) were

apprehended by the police on suspicion of the death of

12 Usha, however, proper investigation was not made on

this aspect. As per him, the possibility of Usha having

been murdered by some other person cannot be ruled

out.

19. Learned counsel concluded his submissions urging that the

case is based purely on circumstantial evidence. The entire chain

of incriminating circumstances has to be established leading to the

only conclusion consistent with the guilt of the accused and

inconsistent with the guilt of anyone else. As per the learned

counsel, this chain was not established conclusively by cogent and

clinching evidence and hence conviction of the accused appellant

as recorded by the trial Court and affirmed by the High Court is

unsustainable and should be set aside.

Submissions on behalf of the respondent-State:-

20. Per contra, learned counsel for the respondent State fervently

and vehemently opposed the submissions advanced by learned

counsel for the appellant and contended that the chain of

incriminating circumstances is complete in all aspects exclusively

pointing out towards the guilt of the accused. The learned counsel

made the following pertinent submissions imploring the Court to

13 dismiss the appeal and upheld the conviction of the accused

appellant: -

(i) That the statement of Ashok Kumar Pathak

recorded as PW-1 during proceedings under Section

299 CrPC was rightly relied upon as admissible and

reliable piece of evidence. The non-examination of

Ashok Kumar Pathak during trial is not a deliberate

act of prosecution, rather, the witness could not be

examined during regular trial after apprehension of

the accused appellant. The witness could not be

traced by the prosecuting agency inspite of best

efforts. The prolonged abscondence of the accused

is primarily the reason for non-examination of

Ashok Kumar Pathak.

(ii) That the complainant Ashok Kumar Pathak in his

evidence as PW-1 during proceedings under Section

299 CrPC has admitted his signature on his

statement[Exhibit PW-1/A(based upon which FIR

was registered)] and also elaborated about the

averments made therein which he had witnessed

with his own eyes.

14

(iii) That the evidence of Ashok Kumar Pathak clearly

establishes the presence of accused appellant with

Usha on intervening night of 19th/20th May, 1990,

whereafter, the lady was found murdered and the

accused was found absconding from the crime scene

leaving behind a confessional note. Ashok Kumar

Pathak also proved about the motive of the appellant

to commit the crime.

(iv) The testimony of Usha’s sister Sudha(PW-10)

establishes that the accused appellant used to

quarrel with Usha suspecting her infidelity and

there were repeated altercations between the

spouses. They had indulged in a fight just four days

prior to the incident. This also establishes the

motive attributed to the appellant to commit the

offence.

(v) That there is no evidence on record to show that

accused appellant and Usha were divorced except a

bald statement made in this regard in the confession

note(Exhibit PW-12/E).

15

(vi) That the report(Exhibit PW-12/F) submitted by the

handwriting expert, Deepa Verma(PW-24) proves

that the handwriting on the confession note(Exhibit

PW-12/E) which was recovered from the crime

scene matched with the handwriting on the two

admitted documents(Exhibits PW-12/C and PW-

12/D) collected from the employer of the accused

appellant and specimen handwritings(Exhibits PW-

5/D, PW-5/E and PW-5/F) given by the accused

appellant to the police which in turn concludes the

fact that the confession note is in the handwriting of

the accused.

21. He urged that the prosecution has proved the case against

the accused appellant by leading cogent and convincing chain of

incriminating circumstantial evidence and implored the court to

dismiss the appeal.

22. We have given our thoughtful consideration to the

submissions advanced by the learned counsel for the parties and

have gone through the judgments of the trial Court and the High

Court as well as the evidence available on record.

16 Discussion and Conclusion: -

23. The main thrust of submissions advanced by Shri Ambreesh

Kumar Aggarwal, learned legal aid counsel representing the

appellant so as to criticise the findings of the trial Court and the

High Court was that both the Courts erred in holding that the

statement of complainant Ashok Kumar Pathak had been recorded

on oath in the proceedings under Section 299 CrPC. As per Shri

Aggarwal, only the Section 161 CrPC statement of complainant

Ashok Kumar Pathak was exhibited by the Investigating

Officer(PW-13) and he never stepped into the witness box.

24. In order to verify this fervent submission of learned counsel

for the appellant, we carefully sifted through the record and find

that the submission so made is without any foundation. The

accused appellant was absconding and could not be arrested and

thus, the Investigating Officer(PW-13) made all possible efforts

including the procurement of warrant of arrest, attempt to serve

the same at the village of the appellant, i.e., Khatta, U.P. He tried

to locate the accused appellant at various locations, without any

success. The warrant which is available on record clearly bears the

address of the accused appellant as Khatta, Prahladpur, Bagpat,

U.P.

17

25. Even proceedings of proclamation and attachment were

undertaken under Sections 82 and 83 CrPC but to no avail

because the accused appellant had vanished after the crime and

was not traceable at the crime scene or at his known address i.e.

village Khatta, U.P. The fact regarding his abscondence was also

published. Accordingly, a charge sheet came to be filed under

Section 299 CrPC showing the accused appellant to be an

absconder.

26. The trial Court passed an order dated 18th March, 1991

declaring the accused appellant to be an absconder and

permission was granted to the prosecution to proceed with the trial

by resorting to the procedure under Section 299 CrPC. This order

was never questioned before any court of law.

27. The trial Judge recorded the statement of Ashok Kumar

Pathak, the complainant as PW-1 under Section 299 CrPC on 17th

July, 1991 after administrating oath to him which begins in the

following manner: -

“Shri Ashok Kumar Pathak, s/o Shri Ram Puran aged 28 years, R/O Kartar Nagar, Gali No. 14, Delhi on S.A.(sworn affirmation)”

18

28. This statement bears the signature of the presiding officer of

the Court and so also of the complainant Ashok Kumar Pathak.

Three more witnesses, namely, Head Constables Mohan Lal and

Surender Kumar and Inspector Bal Kishan were also examined on

oath in proceedings under Section 299 CrPC.

29. In this background, the fervent submission of the learned

counsel for the appellant that the prosecution only exhibited the

statement of complainant Ashok Kumar Pathak recorded under

Section 161 CrPC and that he was never examined on oath in

proceedings under Section 299 CrPC seems to have been made out

of sheer ignorance and without ascertaining the correct position

from the original record.

30. Section 299 of CrPC expressly provides for the power of the

Court to record evidence in absence of the accused in the following

term: -

“299. Record of evidence in absence of accused.—(1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the court competent to try or commit for trial, such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.

19 (2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the First Class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India.”

31. Sub-section (1) of Section 299 CrPC is in two parts, the first

part provides for proof of jurisdictional fact in respect of

abscondence of an accused person and the second that there was

no immediate prospect of arresting him. In the event, an order

under the said provision is passed, deposition of any witness

taken in the absence of an accused may be used against him if

the deponent is dead or incapable of giving evidence or cannot be

found or his presence cannot be procured without any amount of

delay, expense or inconvenience which, under the circumstances

of the case, would be unreasonable.

32. This Court in the case of Nirmal Singh v. State of Haryana1

while considering the issue that under what circumstances and by

what method, the statement of a witness under Section 299 of

CrPC could have been tendered in the case for being admissible

1 (2000) 4 SCC 41

20 under Section 33 of the Indian Evidence Act, 1872 and whether

they can form the basis of conviction, held as follows:

“4. …..Section 299 of the Code of Criminal Procedure consists of two parts. The first part speaks of the circumstances under which witnesses produced by the prosecution could be examined in the absence of the accused and the second part speaks of the circumstances when such deposition can be given in evidence against the accused in any inquiry or trial for the offence with which he is charged. This procedure contemplated under Section 299 of the Code of Criminal Procedure is thus an exception to the principle embodied in Section 33 of the Evidence Act inasmuch as under Section 33, the evidence of a witness, which a party has no right or opportunity to cross-examine is not legally admissible. Being an exception, it is necessary, therefore, that all the conditions prescribed, must be strictly complied with. In other words, before recording the statement of the witnesses produced by the prosecution, the court must be satisfied that the accused has absconded or that there is no immediate prospect of arresting him, as provided under the first part of Section 299(1) of the Code of Criminal Procedure…. …..There possibly cannot be any dispute with the proposition of law that for taking the benefits of Section 299 of the Code of Criminal Procedure, the conditions precedent therein must be duly established and the prosecution, which proposes to utilise the said statement as evidence in trial, must, therefore, prove about the existence of the preconditions before tendering the evidence. ….

….On a mere perusal of Section 299 of the Code of Criminal Procedure as well as Section 33 of the Evidence Act, we have no hesitation to come to the conclusion that the preconditions in both the sections must be established by the prosecution and it is only then, the statements of witnesses recorded under Section 299 CrPC before the arrest of the accused can be utilised in evidence in trial after the arrest of such accused only if the persons are dead or would not be available or any other condition enumerated in the second part of Section 299(1) of the Code of Criminal Procedure is established….” (emphasis supplied)

21

33. Further, in the case of Jayendra Vishnu Thakur v. State of

Maharashtra & Another 2 it was held as follows: -

“25. It is also beyond any cavil that the provisions of Section 299 of the Code must receive strict interpretation, and, thus, scrupulous compliance therewith is imperative in character. It is a well-known principle of interpretation of statute that any word defined in the statutory provision should ordinarily be given the same meaning while construing the other provisions thereof where the same term has been used. Under Section 3 of the Evidence Act like any other fact, the prosecution must prove by leading evidence and a definite categorical finding must be arrived at by the court in regard to the fact required to be proved by a statute. Existence of an evidence is not enough but application of mind by the court thereupon as also the analysis of the materials and/or appreciation thereof for the purpose of placing reliance upon that part of the evidence is imperative in character.

29. Indisputably both the conditions contained in the first part of Section 299 of the Code must be read conjunctively and not disjunctively. Satisfaction of one of the requirements should not be sufficient….” (emphasis supplied)

34. The statement of Ashok Kumar Pathak dated 17th July, 1991

recorded in proceedings under Section 299 CrPC is as follows: -

“I am working as Salesman/supply man in the M/s R.P. Associates a shop of medicines in Bhagirath Place for the last about seven years. In my neighbourhood accused Sukhpal along with his wife Usha and children used to reside in H.No.387 Gali No.14 Kartar Nagar for the last 3/4 years prior to this case. He was having two daughters and one son. Later on he also joined service in M/s R.P. Associates, Bhagirath Place with my assistance. Accused suspected infidelity of his wife Smt. Usha and for this reason they were not having good relations and they always used to quarrel with each other. Prior to the occurrence of this case accused left his house leaving his wife Smt. Usha and three children at the above said house for his village Khatta in UP and used to come to his shop therefrom.

2 (2009) 7 SCC 104

22 Sometimes they used to visit with his wife Usha at his house.

About four days back prior to this occurrence accused Sukhpal had come to his house where sister of Usha was also found present with Usha at his house and on that day Sukhpal had quarrelled with his wife Usha and he then returned. Next day sister of Usha also left with three children of Usha to her house, leaving her sister alone at her house.

On 19.5.1990 at about 10.30 P.M. I saw accused Usha & Sukhpal who came on a cycle to his house having conversation with his wife, sitting on a cot in the court-yard of his house, and I went on the roof of my house, and slept. In the night when the rain was started I came down from the roof and I saw the accused Sukhpal along with his wife Usha going into inside their room. Both of them went inside their room. Next morning due to holiday(closeday being Sunday) I woke up some late and started my daily routine work. I found the cycle of Sukhpal parked in the court-yard of his house. I thought that both of them might be in their room. In the noon I again found the cycle of Sukhpal parked in the court-yard of the house but none of them was seen outside their room. In the evening at about 5.30 P.M. when I called them but no response came from his house but the door of the room was opened. When I entered the room of Usha I found Smt. Usha dead lying on the cot and accused Sukhpal was found missing therefrom. I informed the nearby residents who called the police. Accused Sukhpal had run away from his house after committing the murder of his wife Usha in the night. Police came there and completed the proceedings. I save my statement to the police and I signed my statement which is Ex.PW-1/A and is correct. Other mohalla people also collected there.

There were many injuries on the throat and shoulder, neck of Smt. Usha. There was blood on the bed sheet on which medicines were found scattered and letter written in Hindi by accused Sukhpal regarding the murder of his wife Usha was also found under the cot.

I identify the hand-writing of Sukhpal on that letter, because he was working with me at the aforesaid medicine shop where we used to prepare and write the documents. I have seen him signing and writing the documents at the above said shop with me. Police seized that letter vide a memo Ex.PW1/B and I signed the same.

One old cycle make Avon of accused Sukhpal was seized vide a memo which is Ex.PW1/D. I signed the same. I had seen the accused using that cycle earlier also and so I identify this case to be of accused Sukhpal. Surinder Kumar who was also present there also signed the memo.

23 On 22.5.1990 I was present on my duty at the shop of M/s R.P. Associates, 1696/8 Ist floor Mohan Building Bhagirath Place where accused Sukhpal also used to work. On that day police officials visited the shop where Sanjiv Kumar, owner of the above said shop reduced two letters to the police. One letter was an application for resignation from the service written by Sukhpal to M/s R.P. Associates and another letter at 12.6.89 addressed to R.P. Associates requesting for service to him. Both these letters were written and signed by accused Sukhpal. I identify his writing and signature on it. These letters are Ext.PW/E and Ex.PW/F. These letters were seized vide memo Ex.PW1/G and I signed it. The letter addressed to the police officer written by Sukhpal which was seized from the spot by the police is Ex.P1. which was taken into possession vide memo Ex.PW1/B. Sanjiv Jain owner of the above said shop produced one page of the letter pad to the police who seized the same vide memo Ex.PW1/H and I signed the same.”

35. The statement of Ashok Kumar Pathak(reproduced supra)

gives positive and unwavering proof of the following

circumstances: -

(i) The accused appellant Sukhpal was married to

Usha(deceased).

(ii) There was an ongoing marital strife between the

spouses owing to the suspected infidelity of Usha and on

this ground, they used to quarrel with each other. The

accused appellant left his wife Usha and his three

children and started living in village Khatta, U.P. The

accused suspected infidelity of Usha imputes a strong

motive to the accused for her murder.

24 (iii) Ashok Kumar Pathak had facilitated a job for the

accused appellant in M/s. R.P. Associates.

(iv) Inspite of the strife and acrimonious relationship,

the accused appellant often used to visit his wife Usha

and would stay with her. He had come and stayed with

Usha four days before the incident and at that time,

Sudha, sister of Usha was also present. Sukhpal

quarrelled with Usha in presence of her sister and then

went away.

(v) A day prior to the incident also, accused appellant

had come to House No. J-387, Gali No. 4, Kartar Nagar,

Delhi where the alleged incident took place and stayed

with Usha.

(vi) The witness Ashok Kumar Pathak saw the accused

appellant parking his cycle in the courtyard of the house.

He also saw the accused appellant(Sukhpal) and

wife(Usha) talking to each other while sitting on a cot in

the courtyard. Then it started raining whereupon, both

were seen going into the house from the courtyard. On

the next morning, neither the accused appellant nor Usha

were anywhere to be seen.

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(vii) The witness went to Usha’s house in the evening

and saw her dead body lying on cot with large number of

injuries whereas the accused appellant was missing. The

cycle of the accused appellant was still parked in the

courtyard of the house.

(viii) A handwritten note(Exhibit PW-12/E) confessing to

the murder was found lying underneath the cot on which

the dead body was lying. The witness categorically stated

that this note was written in the handwriting of the

accused appellant which the witness was able to identify

on account of both having worked together in the same

concern(M/s. R.P. Associates) for a significant period of

time.

36. Thus, the circumstances of motive, last seen, confession and

abscondence from the crime scene after committing the crime are

all spoken to by the witness Ashok Kumar Pathak(PW-1) in his

statement dated 17th July, 1991(reproduced supra) recorded on

sworn affirmation during the proceedings under Section 299 CrPC.

It may be stated here that Ashok Kumar Pathak had no motive

whatsoever to falsely implicate the accused appellant for the

murder of Usha.

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37. The fact regarding Usha’s homicidal death is not in dispute.

The Medical Jurist(PW-15) gave categoric testimony to the effect

that Usha had been manually strangled and the cause of death

was Asphyxia. Thus, we need not discuss the medical evidence in

detail.

38. The statement of Ashok Kumar Pathak by itself provides a

complete chain of circumstantial evidence sufficient to establish

the guilt of the accused appellant. The accused appellant vanished

from the crime scene and remained absconding for a period of

nearly 10 years. He could be apprehended on 9th August, 2000,

whereafter, regular trial was conducted. During the period of

abscondence of the accused appellant, the complainant Ashok

Kumar Pathak seems to have left his house at Kartar Nagar, Delhi

where he used to reside earlier. Despite ample efforts being made

by the Investigating Agency to summon and examine Ashok Kumar

Pathak, he could not be traced out and produced in the witness

box for deposition during trial after the accused had been arrested.

39. Viewed in light of the provisions of Section 299 CrPC read

with Section 33 of the Indian Evidence Act, 1872 as interpreted by

this Court in the case of Nirmal Singh(supra) and Jayendra

Vishnu Thakur(supra), the trial Court was justified in holding that

27 the statement of Ashok Kumar Pathak recorded in these

proceedings was fit to be read as a piece of substantive evidence.

We concur with the findings recorded by the trial Court and

affirmed by the High Court on this vital aspect of the matter.

40. Sudha(PW-10), sister of deceased Usha also stated that the

accused appellant used to quarrel with his wife Usha suspecting

her infidelity. The witness also stated that the accused appellant

had come to the house of Usha in her presence about four days

before the incident and went away after fighting with Usha. Thus,

evidence of this witness also establishes the motive attributed to

the accused appellant for commission of the murder. Her

testimony is also sufficient to conclude that inspite of the

acrimonious relations between the husband and wife, the accused

appellant used to visit Usha frequently from the village Khatta,

U.P. where he was residing after having abandoned his wife and

children.

41. The witness Sanjiv Jain(PW-8), employer of accused

appellant gave evidence to the effect that the Investigating

Officer(PW-13) collected the admitted writings of the

accused(Exhibit PW-12/C and Exhibit PW-12/D) from him during

the course of the investigation. Sanjiv Jain(PW-8) had no motive

28 whatsoever so as to falsely implicate the accused in this case. He

had provided employment to the accused which fact is not

disputed. The version of Sanjiv Jain(PW-8) to the effect that the

Investigating Officer(PW-13) collected the scripts/documents

written by the accused while working in his establishment finds

corroboration from the statement of Ashok Kumar Pathak recorded

in the proceedings under Section 299 CrPC.

42. The contention of learned counsel for the appellant that the

two persons namely, Sandeep Kumar and Rajbir Singh(PW-14)

were involved in an illicit affair with Usha and they might have

murdered the lady has no legs to stand because in view of what

has been stated by Ashok Kumar Pathak in his testimony recorded

under Section 299 CrPC, it is clear that no one other than the

accused appellant was present in the house with Usha on the night

she was murdered.

43. The Investigating Officer(PW-13) duly proved the process of

arrest of accused on 9th August, 2000, i.e., after more than 10

years of the incident.

44. The specimen writings(Exhibits PW-5/D, 5/E and 5/F) of the

accused appellant were lawfully collected by the Investigating

Officer(PW-13) after he was arrested and all these documents were 29 placed on record with the charge sheet. These specimen

writings(Exhibits PW-5/D, 5/E and 5/F) and the admitted

writings(Exhibits PW-12/C and PW-12/D) of the accused

appellant along with confession note(Exhibit PW-12/E) recovered

from the crime scene were sent to the handwriting expert(PW-24)

for comparison from where a report(Exhibit PW-12/F) was received

to the effect that the handwritings on these documents match with

each other. As is required under law, the handwriting expert

Deepa Verma was examined as a witness(PW-24) and she proved

the report(Exhibit PW-12/F) establishing the fact that the

handwriting on the confessional note(Exhibit PW-12/E) recovered

from the crime scene matched with the handwriting of the accused

appellant on the specimen and admitted writings.

45. The Investigating Officer(PW-13) gave unimpeachable

evidence proving the various steps taken by him for collection of

evidence during investigation so as to link the accused appellant

with murder of Usha. The fact that the accused appellant was

present with Usha on the night preceding the murder is firmly

established from the deposition of Ashok Kumar Pathak. He went

absconding after the murder and could not be traced out for almost

30 10 years which is also a strong circumstance pointing towards his

guilty state of mind.

46. The circumstances leading to murder of Usha were in the

exclusive knowledge of the appellant. He has offered no

explanation as to the manner in which Usha was strangled to

death within the confines of the room where only he and the

deceased were present. The bald plea of denial offered by the

accused by way of an explanation to this gravely incriminating

circumstance is not sufficient to absolve him of the burden cast

upon him by virtue of Section 106 of the Indian Evidence Act,

1872.

47. As a consequence of the above discussion, we are of the firm

view that the prosecution has established the following links in the

chain of incriminating circumstantial evidence: -

(i) Motive;

(ii) Last seen together;

(iii) Medical evidence establishing that the cause of death of

the deceased was homicidal.

(iv) Confessional note;

(v) Abscondence for nearly 10 years;

31

(vi) Wrong explanation given by the accused in his

statement under Section 313 CrPC;

(vii) Failure of the accused to offer explanation for the

homicidal death of his wife in the night time when only

the accused and deceased were present in the house

leading to the interference of guilt by virtue of Section

106 of the Indian Evidence Act, 1872.

48. Connected together, all these facts form a clinching and

complete chain of incriminating circumstances pointing

exclusively towards the guilt of the accused appellant and totally

inconsistent with his innocence or the involvement of any other

person in the crime.

49. Consequently, we have no hesitation in confirming the view

taken by the trial Court and the High Court in convicting and

affirming the conviction of the accused appellant for the charge of

committing murder of Usha.

50. The impugned judgments do not suffer from any infirmity

warranting any interference.

51. Hence, the appeal fails and is hereby dismissed as such.

32

52. The appellant is on bail. His bail bonds are cancelled. He

shall surrender before the trial Court within the next 60 days to

serve the remainder of the sentence. In case the appellant fails to

surrender before the trial Court within the aforesaid period, the

trial Court shall take steps to apprehend him and make him serve

out the sentence.

53. Pending application(s), if any, shall stand disposed of.

……………………………J. (B.R. GAVAI)

………..………………….J. (SANDEEP MEHTA) New Delhi;

May 07, 2024.

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