Supreme Court of India
ROHTASH KUMARversusSTATE OF HARYANA
- Citation
- 2013 INSC 368
- Decided
- 29 May 2013
- Disposal
- Dismissed
- Bench
- B S CHAUHAN
Holding
The conviction under s.302 IPC was upheld as the circumstantial evidence satisfied the established criteria, and the non‑examination of certain witnesses, minor inconsistencies, and hostile or police testimony did not defeat the prosecution's case.
Summary
The appellant, Rohtash Kumar, was convicted of murdering his wife, Sonia, an inter‑caste spouse, after she was found dead in a hostel garden. The prosecution relied on circumstantial evidence, including the "last seen together" testimony of the hostel caretaker, the appellant's possession and use of the victim's mobile phone after her death, recovered diary, wrist‑watch and suicide note, forensic hair analysis, and his refusal to attend a test identification parade. The defence argued that the prosecution failed to examine several material witnesses, highlighted minor discrepancies in statements, and contended that a hostile witness’s evidence should be excluded. The Supreme Court applied the principles laid down in R. Shaji and held that the chain of circumstances was complete, the discrepancies were immaterial, and hostile or police witnesses could be relied upon after scrutiny. Consequently, the Court upheld the conviction and life sentence, dismissing the appeal.
Issues considered
- The adequacy of circumstantial evidence to sustain a conviction under s.302 IPC
- Whether the prosecution is obligated to examine all cited witnesses
- Impact of minor discrepancies in witness depositions on the credibility of evidence
- Admissibility and weight of testimony from a hostile witness
- Effect of the accused's failure to explain incriminating circumstances under s.313 CrPC
- Application of the "last seen together" theory and its burden‑shifting effect
- Whether a police officer can serve as a reliable witness
- The relevance of motive in a circumstantial case
Legislation cited
- Code of Criminal Procedure, 1973s. 226, s. 231, s. 313, s. 540
- Indian Evidence Act, 1872s. 114, s. 134
- Indian Penal Code, 1860s. 302, s. 404
Subjects
circumstantial evidencelast seen together theoryhostile witnesspolice witnessmotivediscrepancies in depositionss.302 IPC murdercriminal procedureevidence law
Judgment
[2013) 3 S.C.R. 884
A ROHTASH KUMAR
V.
STATE OF HARYANA
(Criminal Appeal No. 896 of 2011)
MAY 29, 2013
B
[DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.)
Penal Code, 1860:
c s.302 - Murder of wife by husband - Circumstantial
evidence - Conviction and sentence of life imprisonment
awarded by courts below - Upheld - Principles, including the
last seen theory, to be applied while convicting the accused
on the basis of circumstantial evidence and the issues
0 pertaining to number of witnesses to be examined,
discrepancies in depositions, evidence of hostile witness,
police official as a witness, motive and explanation of accused
u/s 313 CrPC, discussed - Criminal law- Motive - Evidence
- Circumstantial evidence - Last seen theory - Evidence of
E hostile witness - Evidence of police witness - Discrepancies
in depositions.
The appellant was prosecuted for committing the
murder of his wife. The prosecution case was that it was
an inter-caste marriage, and not approved by family
F members of the bride. The married life of the couple was
not happy and they filed a petition for divorce by mutual
consent. The first motion was complete and the second
motion was fixed for 3.9.2004. On 2.9.2004, the appellant
visited the girls hostel where his wife was residing and
G met her. After an hour the appellant left alone. Later, the
dead body of the wife was found in the hostel premises.
Considering the circumstantial evidence, medical
evidence and the recoveries made, the trial court
convicted the appellant uls 302 IPC and sentenced him
H 884
ROHTASH KUMAR v. STATE OF HARYANA 885
to life imprisonment. The High Court dismissed hh; A
appeal.
Dismissing the appeal; the Court
HELD:
B
Circumstantial evidence:
1.1. The instant case is of circumstantial evidence, as
there exists no eye-witness to the occurrence. This
Court, in R. Shaji's case, enumerated principles to be c
considered while convicting a person on the basis of the
circumstantial evidence. In the instant case, in view of the
evidence, the facts that emerge are: (i) The appellant and
the deceased were classmates of different castes and
had developed intimacy and got married; (ii) Their
0
marriage was not cordial and within a year they filed a
petition for divorce by mutual consent. Just before the
second motion, the appellant met the deceased, and
- assured her that he would agree to the said divorce; (iii)
This information was furnished by deceased to her
mother (PW.3). PW.1, the father of the deceased, went to E
meet her; (iv) PW.1, on reaching at the place of deceased,
was informed that the appellant had come to meet the
deceased and that she was lying dead in the garden.
PW.8 also furnished him with all the requisite details, as
regards the visit of the appellant. PW~1 then lodged an F
FIR; (v) The Police recovered the dead body, as well as
various material objects lying near it, including a rope;
(vi) The post-mortem report suggests that the deceased
had died of asphyxia caused as a result of smothering
and throttling; (vii and ix) The appellant stayed at a Guest G
House with a fictitious name and address, and the
following day tried to commit suicide. He was chased by
the Guest House staff, but he managed to run away. He
left a diary, a wrist watch and a letter, and recovery
thereof was proved; (viii) On 2.9.2004, the appellant had H
886 SUPREME COURT REPORTS (2013] 3 S.C.R.
A made certain telephone calls from the mobile phone
belonging to the deceased to the mother as well as to
several other relatives of the deceased, informing them
about her murder that had been committed by him, and
further stated that he would commit suicide; (x) The
B appellant remained absconding for several days, and on
his arrest and disclosure statement, the mobile phone
belonging to deceased was recovered from a shop; (xi)
The call records clearly prove that the mobile phone
belonging to deceased, was used even after her death
c and that the same was in the possession of the appellant;
(xii) During the investigation, the appellant refused to
participate in the Test Identification Parade, as he could
have been i~entified by Hostel staff as well as by the staff
of the Guest House; (xiii) PW.2 though turned hostile, has
provided material information, and has also accepted his
0
signatures on the recovery memo and his statements, as
well as those of the other attendant; (xiv)The appellant
gave a specimen of his hair to be compared with the hair
recovered from the place of occurrence, and the FSL
report showed that the hair was similar in its
E morphological and microscopical characteristics, to that
of the accused. [para 6, 7 and 36) [896-F-G; 910-G-H; 911-
A-H; 912-A-G; 913-A-D]
R. Shaji v. State of Kera/a, AIR 2013 SC 651; Sharad
F Birdhichand Sarda v. State of Maharashtra, 1985 (1) SCR 88
=1984 AIR 1622; AIR 1984 SC 1622; and Paramjeet Singh
@ Pamrna v. State of Uttarakhand, 2010 (11) SCR 1064 =
AIR 2011 SC 200 - referred to.
G All witnesses need not be examined:
1.2. Prosecution is not bound to examine all the cited
witnesses, and it can drop witnesses to avoid multiplicity
or plurality of witnesses. The accused can examine the
unexamined witnesses in his defence. Non-examination
H of the shop-owner, from whose shop the mobile phone
ROHTASH KUMAR v. STATE OF HARYANA 887
was recovered, is not fatal for the reason that the A
recovery memo bears the signature of the appellant.
Similarly, non-examination of the named persons from
the girls' hostel, or from the Guest House does not
warrant any adverse inference, as there is no need to
provide the same evidence in multiplicity. [para 17 and 39) B
[902-B, 914-G-H; 915-H]
Abdul Gani & Ors. v. State of Madhya Pradesh, AIR 1954
SC 31; Sardul Singh v. State of Bombay1958 SCR 161 =
AIR 1957 SC 747; Masalti v. State of U.P. 1964 SCR 133 =
AIR 1965 SC 202; Bir Singh & Ors. v. State of U.P. 1977 C
(1) SCR 665 = (1977) 4 SCC 420; Darya Singh & Ors. v. State
of Punjab, 1964 (7) SCR 397 =AIR 1965 SC 328; Raghubir
Singh v. State of U.P., AIR 1971 SC 2156; Harpal Singh v.
Devinder Singh & Anr., 1997 (1) Suppl. SCR 648 =AIR 1997
SC 2914; Mohan/al Shamji Soni v. Union of India & Anr., D
1991 (1) SCR 712 = AIR 1991 SC 1346; Banti@ Guddu v.
State of M.P., 2003 (5) Suppl. SCR 119 =AIR 2004 SC 261;
Vadive/u Thevar v. State of Madras; 1957 SCR 981 = AIR
1957 SC 614; and Kishan Chand v. State of Haryana JT
2013(1) SC 222- referred to. E
Discrepancies in depositions:
1.3. Minor discrepancies on trivial matters which do
not affect the core of the case of the prosecution must
not prompt the court to reject the evidence of a witness F
in its entirety. The discrepancies pointed out by the
defence have been explained by the prosecution.
However, the same have not been put to the Investigating
Officer (PW.20) in cross-examination. He answered all
questions that were put to him. [para 18 and 41] [902-F- G
G; 916-C]
State of U.P. v. M.K. Anthony, AIR 1985 SC 48; State
rep. by Inspector of Police v. Saravanan & Anr., 2008
(14) SCR 405 = AIR 2009 SC 152; and Vijay@ Chinee v.
State of M.P., (2010) 8 SCC 191 - referred to. H
888 SUPREME COURT REPORTS [2013] 3 S.C.R.
A Evidence of hostile witness:
1.4. Evidence of a prosecution witness cannot be
rejected in toto, merely because the prosecution chose
to treat him as hostile and cross examined him. Law
8 permits the court to take into consideration the
deposition of a hostile witness. [para 19-20]
State of U.P. v. Ramesh Prasad Misra & Anr., 1996 (4)
Suppl. SCR 631=AIR1996 SC 2766; C. Muniappan & Ors.
v. State of Tamil Nadu, 2010 (10) SCR 262 =AIR 2010 SC
C 3718; Himanshu@ Chintu v. State (NCT of Delhi), 2011
(1) SCR 48 = (2011) 2 SCC 36; and Ramesh Harijan v. State
of U.P. 2012 (6) SCR 688 =AIR 2012 SC 1979; Subedar
Tewari v. State of U.P. & Ors., AIR 1989 SC 733; Suresh
Chandra Bahri v. State of Bihar, 1994 (1) Suppl. SCR 483 =
D AIR 1994 SC 2420; and Dr. Sunil Clifford Daniel v. State of
Punjab, (2012) 11 SCC 205- referred to.
Explanation of the accused:
1.5. Under s. 313 Cr.P.C., accused must furnish some
E explanation of the incriminating circumstances, which
should be noted by the court to ascertain that the chain
of circumstances is complete. A false explanation may be
counted as providing a missing link for completing the
chain of circumstances. [para 22-23] [904-G; 905-D]
F
Musheer Khan @ Badshah Khan & Anr. v. State of
Madhya Pradesh, 2010 (2) SCR 119 =AIR 2010 SC 762;
State of Maharashtra v. Suresh, 1999 (5) Suppl. SCR 215
= (2000) 1 scr. 471- referred to.
G 1.6. Caretaker of the Girls Hostel (PW.8) is an
independent witness. She had "last seen together" the
appellant and the deceased. There is no reason to doubt
the veracity of her statement. The appellant had left alone
from the hostel and has not furnished any explanation as
H to what could have happened to the deceased while she
ROHTASH KUMAR v. STATE OF HARYANA 889
was with him, if he was not responsible for her death. A
Further, no explanation was furnished by him as regards
why he had stayed at the Guest House, by providing a
fictitious name and false address, nor was any
explanation provided by him with respect to the
circumstances under which the mobile phone belonging B
to the deceased had come to be in his possession. [para
37] [913-F-H; 914-A]
Last seen together theory:
1.7. In cases where the accused was last seen with C
the deceased victim (last seen-together theory) just
before the incident, it becomes the duty of the accused,
as the burden · shifts upon him, to show the
circumstances under wt:l-ich the death of the victim
occurred. [para 24-25] [905-E; 906-B] D
Nika Ram v. State of Himachal Pradesh, 1973 (1)
SCR 428 = AIR 1972 SC 2077; and Ganesh/al v. State of
Maharashtra 1992 (2) SCR 502 = (1992) 3 SCC 106;
Trimukh Maroti Kirkan v. State of Maharashtra, 2006 E
(7) Suppl. SCR 156 = (2006) 10 SCC 681; Prithipa/ Singh
& Ors. v. State of Punjab & Anr., 2012 (14) SCR 862 = (2012)
1 sec 10 - referred to.
Police official as a witness:
F
1.8. There is no prohibition that a policeman cannot
be a witness, or that his deposition cannot be relied upon.
However, as far as possible, corroboration of his
evidence on material particulars should be sought. [para ·
26] [906-F; 907-B] G
Pradeep Narayan Madgaonkar & Ors. v. State of
Maharashtra, AIR 1995 SC 1930; Paras Ram v. State of
Haryana, 1992 (2) Suppl. SCR 55 =AIR 1993 SC 1212;
Balbir Singh v. State, 1996 (7) Suppl. SCR 50 = (1996) 11
SCC 139; Kalpnath Rai v. State (Through CBI), AIR 1998 SC H
890 SUPREME COURT REPORTS [2013) 3 S.C.R.
A 201; M. Prabhulal v. Assistant Director, Directorate of
Revenue Intelligence, 2003 (3) Suppl. SCR 958 = AIR 2003
SC 4311; and Ravinderan v. Superintendent of Customs, AIR
2007 SC 2040 - referred to.
8 Motive:
1.9. In a case of circumstantial evidence, motive may
be a very relevant factor. From the undelivered letter that
had been written by the appellant to the Superintendent
of Police and others, and the suicide note written in the
C diary recovered from the Guest House, it is evident that
the feelings of the appellant towards deceased and her
family members were such that they could have given
rise to a motive for him to commit the offence. [para 21
and 38) [904-C; 914-B-C, F]
D
1.10. No interference with the judgments of the courts
below is called for by this Court. [para 42) [916-G]
Case Law Reference:
E 1985 (1) SCR 88 referred to Para 7
2010 (11) SCR 1064 referred to Para 7
AIR 1954 SC 31 referred to Para 8
1958 SCR 161 referred to Para 9
F
1964 SCR 133 referred to Para 10
1977 (1) SCR 665 referred to Para 10
1964 (7) SCR 397 referred to Para 11
G
AIR 1971 SC 2156 referred to Para 12
1997(1) Suppl. SCR 648 referred to Para 13
1991 (1) SCR 712 referred to Para 14
H
ROHTASH KUMAR v. STATE OF HARYANA 891
2003 (5) Suppl. SCR 11fl referred to Para 15 A
1957 SCR 981 referred to Para 16
JT 2013(1) SC 222 referred to Para 16
AIR 1985 SC 48 referred to Para 18 B
2008 (14) SCR 405 referred to Para 18
(201 O) 8 sec 191 referred to Para 18
1996 (4) Suppl. SCR 631 referred to Para 20
c
2010 (10) SCR 262 referred to Para 20
2011 (1) SCR 48 referred to Para 20
2012 (6) SCR 688 referred to Para 20
referred to Para 21 D
AIR 1989 SC 733
1994 (1) Suppl. SCR 483 referred to Para 21
(2012) 11 sec 205 referred to Para 21
2010 (2) SCR 119 referred to Para 22 E
1999 (5) Suppl. SCR 215 referred to Para 23
1973 (1) SCR 428 referred to Para 24
1992 (2) SCR 502 referred to Para 24
F
2006 (7) Suppl. SCR 156 referred to
Para 25
2012 (14) SCR 862 referred to Para 25
AIR 1995 SC 1930 referred to Para 26 G
1992 (2) Suppl. SCR 55 referred to . Para 26
1996 (7) Suppl. SCR 50 referred to Para 26
AIR 1998 SC 201 referred to Para 26
H
892 SUPREME COURT REPORTS [2013] 3 S.C.R.
A AIR 2007 SC 2040 referred to Para 26
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 896 of 2011.
From the Judgment & Order dated 05.02.2009 of the High
B Court of Punjab at Haryana at Chandigarh in Crl. Appeal No.
862-DB of 2006.
Dr. Sushi! Balwada, Pankaj Bhagat for the Appellant.
Ramesh Kumar, Manish K. Bishnoi for the Respondent.
c
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. This appeal has been filed
against the judgment and order dated 5.2.2009 passed by the
o High Court of Punjab and Haryana at Chandigarh in Criminal
Appeal No. 862-DB of 2006, by which it has affirmed the
judgment and order of the Sessions Court, by way of which and
whereunder the appellant has been convicted for the offences
punishable under Sections 302 and 404 of the Indian Penal
E Code, 1860 (hereinafter referred to as 'the IPC'), and sentenced
to undergo life imprisonment and to pay a fine of Rs.5,000/-,
and in default of payment of fine, to undergo further rigorous
imprisonment for one year under Section 302 IPC; and was
also sentenced to undergo rigorous imprisonment for two years
F and to pay a fine of Rs.500/-, and in default of payment of fine,
to undergo further rigorous imprisonment for three months
under Section 404 IPC. However, both the substantive
sentences have been ordered to run concurrently.
2. Facts and circumstances as per the prosecution in brief,
G are as under:
A. Appellant got married to Sonia (since deceased), aged
30 years, in March 2003. It was an inter-caste marriage, and
thus, was not approved of by Sonia's family members. They had
H both studied Pharmacy together. After passing the Pharmacy
ROHTASH KUMAR v. STATE OF HARYANA 893
[DR. B.S. CHAUHAN, J.]
Course, Sonia (deceased) was appointed as a Lecturer in the A
B.S.A. Pharmacy College, Faridabad, and she was also
working as a Warden in the Girls' hostel of the said Pharmacy
College, situated in Kathi No. 783, Sector 21-A, Faridabad. The
married life of the couple was not happy and they thus filed a
Divorce Petition on the basis of mutual consent under Section B
13-B of the Hindu Marriage Act, 1955 before the Family Court,
Rohtak. The first motion was complete and the second motion
had been fixed for 3.9.2004.
B. On 2.9.2004, Sonia (deceased) sent a telephonic
message to her mother, Smt. Dhanpati Devi (PW.3), stating C
that in the previous evening, the appellant Rohtash had come
to meet her in the hostel at 8.00 P.M. and had told her that he
would appear in the Family Court at Rohtak on 3.9.2004, to
make his statement for getting the divorce.
D
C. In view of the above, on 2.9.2004 at about 5.00 P.M.,
Su be Singh (PW.1 ), father of Sonia (deceased), came
alongwith his nephew Wazir Singh to meet Sonia in her hostel
at Faridabad. However, when they reached there, Ghanshyam
(Security Guard), Arjun (Cook) and Bimla (Caretaker) of the E
hostel came and met them. Bimla (PW.8) (Caretaker) told them
that on the same day at about 1.00 P.M., the appellant had
come to the hostel to meet Sonia. Both of them had engaged
in conversation for about one hour, while sitting in the verandah
of the hostel and also had tea together. After the appellant had F
left the hostel, Bimla (PW.8) had gone to bathroom to wash
clothes. Later on, when she had gone in search of Sonia
(deceased), she had found her lying dead among the plants,
in the gallery of the hostel. She had died of strangulation.
D. Su be Singh (PW.1 ), had gone to the police station and G
lodged a complaint giving all the details, also stating that the
appellant might have committed the said offence, as she had
scratch marks on her neck, as well as on her breasts.
E. In view of the complaint made by Sube Singh (PW.1), H
894 SUPREME COURT REPORTS [2013] 3 S.C.R.
A an FIR was registered (Ex.P-12). Necessary investigation was
conducted, statements of witnesses were recorded, and the
postmortem examination on the dead body of Sonia
(deceased) was also performed. The appellant was arrested
only on 8.9.2004. The articles collected from the place of
B occurrence and samples taken from the appellant, particularly,
specimens of his hair etc., were sent to the Forensic Science
Laboratory, Madhuban, for the preparation of an FSL report.
After completion of the investigation, a chargesheet was filed
against the appellant in court.
c F. After committal proceedings, charges were framed
against the appellant under Sections 302 and 404 IPC. The
prosecution examined 21 witnesses in support of its case,
including the parents and relatives of the deceased, as well
as Dr. Virender Yadav (PW.4), Ms. Anita Dahiya, the then
D Chief Judicial Magistrate, Faridabad (PW.17), Dr. O.P. Sethi,
(PW.21), and SI Vinod Kumar (PW.20), the investigating
officer. Some of the cited witnesses were given up, and a large
number of documents etc., were filed.
E G. The appellant was examined under Section 313 of the ·
Code of Criminal Procedure, 1973, (hereinafter referred to as
'the Cr.P.C.'), and all the incriminating material/circumstances
were put to him one by one. He denied each allegation levelled
against him by repeatedly stating, "It is incorrect." The appellant
F did not himself, adduce any evidence in defence.
The learned Sessions Court, after appreciating all the
evidence and the submissions made by the public prosecutor
and the defence counsel, convicted and sentenced the
appellant as has been referred to hereinabove.
G
H. Aggrieved, the appellant preferred an Appeal before
the High Court, which has been dismissed vide impugned
judgment and order dated 5.2.2009.
Hence, this appeal.
H
ROHTASH KUMAR v. STATE OF HARYANA 895
[DR. B.S. CHAUHAN, J.]
3. Dr. Sushi! Balwada, learned counsel appearing on A
behalf of the appellant has submitted, that there was no eye-
witness to the occurrence and that the prosecution had failed
to prove and meet the parameters laid down by this Court for
conviction in a case of circumstantial evidence. Even if there
had been some discord in their marriage, they had agreed to
8
separate mutually and the second motion of the Divorce
Petition filed by mutual consent, had been fixed for next day i.e.
3.9.2004. Thus, there had been no occasion for the appellant
to commit the offence. The material witnesses to the incident,
particularly Ghanshyam and Arjun, who had been working as
the Guard and Cook respectively in the Girls' hostel, and C
Mahender (Attendant) of the Taneja Guest House, where the
appellant is alleged to have stayed under a fake name, have
not been examined. The prosecution was under an obligation
to examine each of them. The evidence of Jagatpal (PW.2), a
hostile witness, could not have been considered at all. In light D
of the facts of this case, the theory of "last seen" together
cannot be applied. Furthermore, the prosecution has created
an entirely improbable story to the effect that after killing Sonia,
the appellant had taken away her mobile phone, and had in the
evening on the same day, telephoned his mother-in-law E
Dhanpati (PW.3), as well as several other relatives of Sonia,
making an extra- judicial confession stating that he had killed
Sonia, and that he would now himself commit suicide. The
recovery of mobile phone from !tarsi (M.P.) cannot be relied
upon, as this place is far away from Faridabad. There are F
material inconsistencies in the statements of the witnesses. The
. chain of circumstances is not complete. The prosr:cution must
prove its case beyond reasonable doubt, and cannot take
advantage of the weaknesses in the case of the defence. Thus,
the appeal deserves to be allowed. G
4. Per contra, Shri Ramesh Kumar. learned counsel
appearing on behalf of the State, has opposed the appeal
contending that the appellant had last been seen with Sonia
(deceased), by several persons including Simla (PW.8), in the
H
896 SUPREME COURT REPORTS [2013] 3 S.C.R.
A hostel. The appellant had thereafter left the hostel alone, just
before Sonia had been found dead. The appellant, after
committing the offence, had run away and stayed at the Taneja
Guest House, Faridabad, under a fictitious name and by
providing a fake address. He had also made an attempt to
commit suicide in the said Guest House, and on being asked
8
about the same by the attendant, he had run away from there.
The appellant had left his diary and wrist watch, as well as a
letter in the name of the Superintendent of Police, the Deputy
Commissioner of Faridabad, the Chief Justice of the Punjab
& Haryana High Court, and the Chairman of the Human Rights
C Commission, complaining about the family members of Sonia.
The diary had also contained a suicide note. The conduct of
the appellant clearly indicates that he has committed the offence.
The concurrent findings of fact recorded by the courts below
do not warrant any interference and therefore, the appeal is
D liable to be dismissed.
5. We have considered the rival submissions made by
learned counsel for the parties, and perused the record.
E Before we enter into the merits of the case and its factual
matrix, it is desirable to deal with the legal issues involved
herein.
Case of Circumstantial evidence:
F 6. The present case is of circumstantial evidence, as there
exists no eye-witness to the occurrence. The primary issue
herein involves determination of the requirements for deciding
a case of circumstantial evidence.
7. This Court, in R. Shaji v. State of Kera/a, Al R 2013 SC
G 651 has held, "the prosecution must establish its case beyond
reasonable doubt, and cannot derive any strength from the
weaknesses in the defence put up by the accused. However,
a false defence may be brought to notice, only to lend
assurance to the Court as regards the various links in the chain
H
ROHTASH KUMAR v. STATE OF HARYANA 897
[DR. B.S. CHAUHAN, J.]
of circumstantial evidence, which are in themselves complete. A
The circumstances on the basis of which the conclusion of guilt
is to be drawn, must be fully established. The same must be of
a conclusive nature, and must exclude all possible hypothesis,
except the one to be proved. Facts so established must be
consistent with the hypothesis of the guilt of the accused, and
8
the chain of evidence must be complete, so as not to leave any
reasonable ground for a conclusion consistent with the
innocence of the accused, and must further show, that in all
probability, the said offence must have been committed by the
accused."
c
(See also: Sha rad Birdhichand Sarda v . . State of
Maharashtra, AIR 1984 SC 1622; and Paramjeet Singh @
Pamma v. State of Uttarakhand, AIR 2011 SC 200).
Thus, the Court while convicting a person on the basis of 0
the circumstantial evidence, must apply the aforesaid principles.
Whether prosecution must examine all the witnesses:
8. A common issue that may arise in such cases where
some of the witnesses have not been examined, though the E
same may be material witnesses is, whether the pros~ution
is bound to examine all the listed/cited witnesses.
This Court, in Abdul Gani & Ors. v. State of Madhya
Pradesh, AIR 1954 SC 31, has examined the aforesaid issue
and held, that. as a general rule, all witnesses must be called F
upon to testify in the course of the hearing of the prosecution,
but that there is no obligation compelling the public prosecutor
to call upon all the witnesses available who can depose
regarding the facts that the prosecution desires to prove.
Ultimately, it is a matter left to the discretion of the public G
prosecutor, and though a court ought to and no doubt would,
take into consideration the absence of witnesses whose
testimony would reasonably be expected, it must adjudge the
evidence as a whole and arrive at its conclusion accordingly,
H
898 SUPREME COURT REPORTS [2013] 3 S.C.R.
A taking into consideration the persuasiveness of the testimony
given in the light of such criticism, as may be levelled at the
absence of possible material witnesses.
9. In Sardul Singh v. State of Bombay, AIR 1957 SC 747,
a similar view has been reiterated, observing that a court
B cannot, normally compel the prosecution to examine a witness
which the prosecution does not choose to examine, and that
the duty of a fair prosecutor extends only to the extent of
examination of such witnesses, who are necessary for the
purpose of disclosing the story of the prosecution with all its
C essentials.
10. In Masalti v. State of U.P., AIR 1965 SC 202, this Court
held that it would be unsound to lay down as a general rule, that
every witness must be examined, even though, the evidence
0 provided by such witness may not be very material, or even if
it is a known fact that the said witness has either been won over
or terrorised. "In such cases, it is always open to the defence
to examine such witnesses as their own witnesses, and the
court itself may also call upon such a witness in the interests
E of justice under Section 540 Cr.P.C.". '
(See also: Bir Singh & Ors. v. State of U.P., (1977) 4 SCC
420)
11. In Darya Singh & Ors. v. State of Punjab, AIR 1965
F SC 328, this Court reiterated a similar view and held that if the
eye-witness(s) is deliberately kept back, the Court may draw
inference against the prosecution and may, in a proper case,
regard the failure of the prosecutor to examine the said
witnesses as constituting a serious infirmity in the proof of the
G prosecution case.
12. In Raghubir Singh v. State of U.P., AIR 1971 SC 2156,
this Court held as under:
• ... Material witnesses considered necessary by the
H prosecution for unfolding the prosecution story alone
ROHTASH KUMAR v. STATE OF HARYANA 899
[DR. B.S. CHAUHAN, J.]
need be produced without unnecessary and redundant A
multiplication of witnesses. The appellant's counsel has
not shown how the prosecution story is rendered less
trustworthy as a result of the non-production of the
witnesses mentioned by him. No material and important
witness was deliberately kept back by the prosecution.
8
Incidentally we may point out that the accused too have
not considered it proper to produce those persons as
witnesses for controverting the prosecution
version ..... "
(Emphasis added) C
. 13. In Harpal Singh v. Devinder Singh & Anr., AIR 1997
SC 2914, this Court reiterated a similar view and further
observed:
" .... The illustration (g) in Section 114 of the Evidence Act D
is only a -Permissible inference and not a necessary
inference. Unless there are other circumstances also to
facilitate the drawing of an adverse inference, it should
not be a mechanical process to draw the adverse
inference merely on the strength of non-examination of E
a witness even if it is a material witness .. ... "
14. In Mohan/al Shamji Soni v. Union of India & Anr., AIR
1991 SC 1346, this Court held:
"10. It is cardinal rule in the law of evidence that-the best F
available evidence should be brought before the Court
to prove a fact or the points in issue. But it is left either
for the prosecution or for the defence to establish its
respective case by adducing the best available evidence
and the Court is not empowered under the provisions of G
the Code to compel either the prosecution or the defence
to examine any particular witness or witnesses on their
sides. Nonetheless if either of the parties withholds any
evidence which could be produced and which, if
H
900 SUPREME COURT REPORTS [2013] 3 S.C.R.
A produced, be unfavourable to the party withholding such
evidence, the Court can draw a presumption under
illustration (g) to Section 114 of the Evidence Act .... In
order to enable the Court to find out the truth and render
a just decision, the salutary provisions of Section 540 of
the Code (Section 311 of the new Code) are enacted
B
whereunder any Court by exercising its discretionary
authority at any stage of enquiry, trial or other proceeding
can summon any person as a witness or examine any
person in attendance though not summoned as a witness
or recall or re-examine any person in attendance though
c not summoned as a witness or recall and re-examine any
person already examined who are expected to be able
to throw light upon the matter in dispute; because if
judgments happen to be rendered on inchoate,
inconclusive and speculative presentation of facts, the
D ends of justice would be defeated."
15. In Banti@ Guddu v. State of MP., AIR 2004 SC 261,
this Court held:
"In trials before a Court of Session the prosecution "shall
E be conducted by a Public Prosecutor". Section 226 of the
Code of Criminal Procedure, 1973 enjoins on him to
open up his case by describing the charge brought
against the accused. He has to state what evidence he
proposes to adduce for proving the guilt of the accused.
F ... ... If that version is not in support of the prosecution
case it would be unreasonable to insist on the Public
Prosecutor to examine those persons as witnesses for
prosecution.
G When the case reaches the stage envisages in Section
231 of the Code the Sessions Judge is obliged "to take
all such evidence as may be produced in support of the
prosecution". It is clear form the said section that the
Public Prosecutor is expected to produce evidence "in
H support of the prosecution" and not in derogation of the
ROHTASH KUMAR v. STATE OF HARYANA 901
[DR. B.S. CHAUHAN, J.]
prosecution case. At the said stage the Public Prosecutor A
would be in a position to take a decision as to which
among the presence cited are to be examined. If there
are too many witnesses on the same point the Public
Prosecutor is at liberty to choose two or some among
them alone so that the time of the Court can be saved
8
from repetitious depositions on the same factual aspects.
...... This will help not only the prosecution in relieving
itself of the strain of adducing repetitive evidence on the
same point but also help the Court considerably in
lessening the workload. Time has come to make every
effort possible to Jessen the workload, particularly those C
courts crammed with cases, but without impairing the
cause of justice . ..... .It is open to the defence to cite him
and examine him as a defence witness ........ "
16. The said issue was also considered by this Court in D
R. Shaji (supra), and the Court, after placing reliance upon its
judgments in Vadivelu Thevar v. State of Madras; AIR 1957
SC 614; and Kishan Chand v. State of Haryana, JT 2013 (1)
SC 222), held as under: .
"22. In the matter of appreciation of evidence of E
witnesses, it is not the number of witnesses, but the quality
of their evidence which is important, as there is no
requirement in the law of evidence stating that a
particular number of witnesses must be examined in
order to prove/disprove a fact. It is a time-honoured F
principle, that evidence must be weighed and not
counted. The test is whether the evidence has a ring of
truth, is cogent, credible and trustworthy, or otherwise. The
legal system has laid emphasis on the value provided
by each witness, as opposed to the multiplicity or G
plurality of witnesses. It is thus, the quality and not
quantity, which determines the adequacy of evidence, as
has been provided by Section 134 of the Evidence Act.
Where the law requires the examination of at least one
H
902 SUPREME COURT REPORTS [2013] 3 S.C.R.
A attesting witness, it has been held that the number of
witnesses produced over and above this, does not carry
any weight."
17. Thus, the prosecution is not bound to examine all the
cited witnesses, and it can drop witnesses to avoid multiplicity
B or plurality of witnesses. The accused can also examine the
cited, but not examined witnesses, if he so desires, in his
defence. It is the discretion of the prosecutor to tender the
witnesses to prove th~ case of the prosecution and "the court
will not interfere with the exercise of that discretion unless,
C perhaps, it can be shown that the prosecution has been
influenced by some oblique motive." In an extra-ordinary
situation, if the court comes to the conclusion that a material
witness has been withheld, it can draw an adverse inference
1.1gainst the prosecution, as has been provided under Section
D 114 of the Evidence Act. Undoubtedly, the public prosecutor
must not take the liberty to "pick and choose" his witnesses,
as he must be fair to the court, and therefore, to the truth. In a
given case, the Court can always examine a witness as a court
witness, if it is so warranted in the interests of justice. In fact,
E the evidence of the witnesses, must be tested on the touchstone
of reliability, credibility and trustworthiness. If the court finds the
same to be untruthful, there is no legal bar for it to discard the
same.
Discrepancies in the depositions:
F
18. It is a settled legal proposition that while appreciating
the evidence of a witness, minor discrepancies on trivial
matters which do not affect the core of the case of the
prosecution, must not prompt the court to reject the evidence
G in its entirety. Therefore, unless irrelevant details which do not
in any way corrode the credibility of a witness should be
ignored. The court has to examine whether evidence read as
a whole appears to have a ring of truth. Once that impression
is formed, it is undoubtedly necessary for the court to scrutinize
H the evidence more particularly keeping in view the deficiencies,
ROHTASH KUMAR v. STATE OF HARYANA 903
[DR. B.S. CHAUHAN, J.]
drawbacks and infirmities pointed out in the evidence as a A
whole and evaluate them to find out whether it is against the
general tenor of the evidence given by the witnesses and
whether the earlier evaluation of the evidence is shaken, as to
render it unworthy of belief. Thus, the court is not supposed to
give undue importance to omissions, contradictions and B
discrepancies which do not go to the heart of the matter, and
shake the basic version of the prosecution witness. Thus, the
court must read the evidence of a witness as a whole, and
consider the case in light of the entirety of the circumstances,
ignoring the minor discrepancies with respect to trivial matters,
which do not affect the core of the case of the prosecution. The C
said discrepancies as mentioned above, should not be taken
into consideration, as they cannot form grounds for rejecting the
evidence on record as a whole. (See: State of U.P. v. M.K.
Anthony, AIR 1985 SC 48; State rep. by Inspector of Police
v. Saravanan & Anr., AIR 2009 SC 152; and Vijay@ Chinee D
v. State of M.P., (2010) 8 SCC 191).
Evidence of a hostile witness:
19. It is a settled legal proposition that evid~nce of a
prosecution witn·ess cannot be rejected in toto, merely because E
the prosecution chose to treat him as hostile and cross
examined him. The evidence of such witnesses cannot be
treated as effaced, or washed off the record altogether. The
same can be accepted to the extent that their version is found
to be dependable, upon a careful scrutiny thereof. F
20. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR
1996 SC 2766, this Court held, that evidence of a hostile
witness would not be rejected in entirety, if the same has been
given in favour of either the prosecution, or the accused, but is G
required to be subjected to careful scrutiny, and thereafter, that
portion of the evidence which is consistent with the either case
of the prosecutioo) or that of the defence, may be relied upon.
(See also: C. Muniappan & Ors. v. State of Tamil Nadu, AIR
2010 SC 3718; Himanshu@ Chintu v. State (NCT of Delhi), H
904 SUPREME COURT REPORTS [2013] 3 S.C.R.
A (2011) 2 SCC 36; and Ramesh Harijan v. State of U.P., AIR
2012 SC 1979).
Therefore, the law permits the court to take into
consideration the deposition of a hostile witness, to the extent
that the same is in consonance with the case of the prosecution,
B and is found to be reliable in careful judicial scrutiny.
Motive:
21. The evidence regarrling the existence of a motive
which operates. in the mind of the accused is very often very
C limited, and may not be within the reach of others. The motive
driving the accused to commit an offence may be known only
to him and to no other. In a c~se of circumstantial evidence,
motive may be a very relevant factor. However, it is the .
perpetrator of the crime alone who is aware of the
D circumstances that prompted him to adopt a certain course of
action, leading to the commission of the crime. Therefore, if the
evidence on record suggests adequately, the existence of the
necessary motive required to commit a crime, it may be
conceived that the accused has in fact, committed the same.
E (Vide: Subedar 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, (2012)
11 sec 20s).
F Explanation of the accused:
22. 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
G explanation even in a case of circumstantial evidence, to
decide whether or not, the chain of circumstances is complete.
[Vide: Musheer Khan @ Badshah Khan & Anr. v. State of
Madhya Pradesh, AIR 2010 SC 762; and Dr. Sunil Clifford
Daniel (supra)].
H
ROHTASH KUMAR v. STATE OF HARYANA 905
' [DR. B.S. CHAUHAN, J.]
23. This Court, in State of Maharashtra v. Suresh, (2000) A
1 sec 471, held as under:
"When the attention of the accused is drawn to such
circumstances that inculpate him in relation to the
commission of the crime, and he fails to offer an
appropriate explanation or gives a false answer with B
respect to the same, the said act may be counted as
providing a missing link for completing the chain of
circumstances."
Undoubtedly, the prosecution has to prove its case beyond c
reasonable doubt. However, in certain circumstances, the
accused has to furnish some explanation to the incriminating
circumstances, which has come in evidence, put to him. A false
explanation may be counted as providing a missing link for
completing a chain of circumstances. D
Last seen together theory:
24. In cases where the accused was last seen with the
deceased victim (last seen-together theory) just before the
incident, it becomes the duty of the accused to explain the . E
circumstances under which the death of the victim occurred.
(Vide: Nika Ram v. State of Himacha/Pradesh, AIR 1972 SC
2077; and Ganesh/al v. State of Maharashtra, (1992) 3 SCC
. 106).
25. In Trimukh Maroti Kirkan v. State of Maharashtra,
F
(2006) 10 SCC 681, this Court held as under:
"Where an accused is alleged to have committed the
murder of his wife and the prosecution succeeds in
leading evidence to show that shortly before the G
commission of crime they were seen together or the
offence takes place in the dwelling home where the
husband also normally resided, it has been consistently
held that if the accused does not offer any explanation
how the wife received injuries or offers an explanation H
906 SUPREME COURT REPORTS [2013] 3 S.C.R.
A which is found to be false, it is a strong circumstance
which indicates that he is responsible for commission of
the crime."
(See also: Prithipal Singh & Ors. v. State of Punjab &
Anr., (2012) 1 sec 10)
B
Thus, the doctrine of "last seen together" shifts the burden
of proof on the accused, requiring him to explain how the
incident had occurred. Failure on the part of the accused to
furnish any explanation in this regard, would give rise to a very
c strong presumption against him.
Police official as a witness:
26. The term witness, means a person who is capable of
providing information by way of deposing as regards relevant
D facts, via an oral statement, or a statement in writing, made or
given in Court, or otherwise.
In Pradeep Narayan Madgaonkar & Ors. v. State of
Maharashtra, AIR 1995 SC 1930, this Court examined the
E issue of the requirement of the examination of an independent
witness, and whether the evidence of a police witness requires
corroboration. The Court herein held, that the same must be
subject to strict scrutiny. However, the evidence of police
officials cannot be discarded merely on the ground that they
F belonged to the police force, and are either interested in the
investigating or the prosecuting agency. However, as far as
possible the corroboration of their evidence on material
particulars, should be sought.
(See also: Paras Ram v. State of Haryana, AIR 1993 SC
G 1212; BalbirSingh v. State, (1996) 11SCC139; Kalpnath Rai
v. State (Through CBI), AIR 1998 SC 201; M. Prabhulal v.
Assistant Director, Directorate of Revenue Intelligence, AIR
2003 SC 4311; and Ravinderan v. Superintendent of
Customs, AIR 2007 SC 2040).
H
ROHTASH KUMAR v. STATE OF HARYANA 907
[DR. B.S. CHAUHAN, J.]
Thus, a witness is normally considered to be independent, A
unless he springs from sources which are likely to be tainted
and this usually means that the said witness has cause, to bear
such enmity against the accused, so as to implicate him falsely.
In view of the above, there can be no prohibition to the effect
that a policeman cannot be a witness, or that his deposition
8
, cannot be relied upon.
27. The instant case requires to be considered in light of
the aforesaid settled legal propositions ..
Sube Singh (PW.1 1, father of Sonia, deceased, had c
sufficient reason to go to go to Faridabad to meet his daughter,
in view of the fact that the second motion of divorce between
the appellant and the deceased was fixed for next day, and
Sonia, deceased had telephoned her mother regarding the
arrival of the appellant one day before, stating that she had 0
doubts about the promise made by the appellant to the extent
that he would make a statement before the Family Court at
Rohtak, to facilitate their divorce by mutual consent. It is but
natural for any parent, even if they dis-approve of the inter-caste
marriage of their children, to want to be with them at the time E
of such proceedings, that would affect the· life of their child.
Su be Singh (PW.1) has further deposed, that the police had
recovered clothes, rope, handkerchief, hairpin and blood
stained earth etc. from the place of occurrence, and had kept
these articles in separate parcels.
F
28. Dhanpati (PW.3), mother of the deceased, has
corroborated the deposition of Su be Singh (PW.1 ), and has
further deposed, that she had received a phone call from the
accused which had been made from the mobile phone number
that had belonged to Sonia deceased. On being asked, about G
the same by her, he had told her that he had murdered Sonia
in her hostel by strangulating her, and that thereafter, he had
run away from the place of occurrence. He had also stated that
he would commit suicide.
H
908 SUPREME COURT REPORTS [2013) 3 S.C.R.
A 29. Bimla (PW.8), the caretaker of the hostel, has deposed
that while she was working as a caretaker in the Girls' hostel,
on 1.9.2004 at about 8-9 p.m., Sonia (deceased) had come
to the hostel and immediately had gone to make a phone call.
After about 10 minutes, her husband, i.e., the appellant accused
had reached there. They had engaged in some conversation.
8
The next day, Sonia had come back from college at about 1.00
p.m., and shortly after, the appellant had also arrived there.
Ghanshyam, the watchman had been told by the appellant that
he was husband of the warden and wanted to meet her.
Ghanshyam had not initially permitted him to enter the hostel,
C but had allowed his entry after taking permission from Sonia.
The appellant and Sonia had then sat together in the verandah
of the hostel, and had spoken for about 30-40 minutes. Both
of them had then left the hostel, and had returned only after
about one hour. After their arrival, the witness had served them
D tea. Thereafter, she had gone to bathroom to wash clothes, and
when she returned after about 20-25 minutes, she had enquired
from Ghanshyam regarding the whereabouts of Sonia and her
husband. She had then been told that Sonia was in her room,
whereas the appellant had already left the hostel alone. While
E going Sonia's room, she had found her lying dead in the garden,
near the plants in the hostel. Seeing her dead, the witness was
frightened.
30. Mukesh Chand (PW.9), has proved the pendency of
F the case for divorce by mutual consent before the Family Court,
Rohtak and the fact that the date of the second motion had been
fixed for 3.9.2004.
31. Narender Singh (PW.12), is the brother-in-law of Sonia
(deceased). He has deposed that he had received a phone call
G at about 5.30 p.m. on 2.9.2004, from the mobile phone number
belonging to Sonia. The said phone call had been made by the
appellant, and he had informed the witness that he had killed
Sonia, and had further told him he had also had an illicit
relationship with the wife of the witness. The witness has
H
ROHTASH KUMAR v. STATE OF HARYANA 909
[DR. B.S. CHAUHAN, J.]
deposed, that on hearing this, he had lost his temper and had A
used abusive language in relation to the appellant, after which
he had disconnected the call.
Virender Singh (PW.19), a relative of Sonia's, had also
received a similar phone call from the appellant from the mobile
phone number belonging to of Sonia. B
32. Ms. Anita Dahiya (PW.17), the then Chief Judicial
Magistrate, Faridabad, has deposed that the investigating
officer had wanted to have an identification parade, but that the
appellant had not agreed to the same. c
33. Jagatpal (PW.2), an attendant at the Taneja Rest
House, NIT, Faridabad, Has deposed in his examination-in-
chief that a person had stayed in the said guest house, after
disclosing his identity as Amit, and by providing his address
as 535, Model Town, Simla. He had even made the requisite D
entries in the register in his own handwriting. As regards the
rest of the situation, he has stated that since his duty was then
over, his colleague Mahender, had come on duty at 9.00 a.m.
on 2.9.2004, and that therefore, he had no further information
to offer. At this stage, he was declared hostile as it was found E
that he was suppressing the truth and thus, he was cross-
examined. Undoubtedly, he has turned hostile. However, he has
admitted that on 2.9.2004! at about 6.30 p.m., attendant
Mahender had come to his place, and had told him that the
occupant of room no. 114 was attempting to commit suicide, F
and t.his was when he, alongwith Mahender had gone to his
room. The appellant had thereafter, run away from the guest
house. They had tried to chase him but in vain. From his room,
one diary, a letter and wrist watch were recovered, and the said
articles were handed over to the police vide memo Ex.PS, G
which bore his signature.
34. Dr. Virender Yadav (PW.4), had conducted the post-
mortem examination on the body of Sonia, and he has deposed
that there was bleeding with clotted blood present in the bilateral H
910 SUPREME COURT REPORTS [2013] 3 S.C.R.
A nostrils, and on the right side of the mouth. Rigor mortis was
present in all the four limbs with postmortem staining on
dependent parts. Multiple abrasions were present on the front
of the neck, with large reddish contusions-bilateral shoulders,
more on the right side. Abrasions numbering four of the size
B 2.5 x 0.75 ems., were present on the right side, just below the
clavicle and four of these in number were present on its left
side.
On dissection, the muscle of the neck was contused with
hemorrhage with a fracture of the thyroid cartilage, and a
C fracture of the tracheal rings with blood clots in the trachea. The
adjoining muscles and upper chest muscles were contused
extensively with blood clots, with bilateral fractures of the
clavicle bone and the upper second and third ribs.
0 In his opinion, the cause of death was asphyxia caused
as a result of smothering and throttling, which was ante-mortem
in nature and was sufficient to cause death in the natural course.
He has further deposed, that she had died within· two
minutes of the offence, and before 24 hours of the post-mortem.
E
35. There is evidence on record to show that the mobile
phone had been purchased by Sonia from ltarsi on 10.9.2004.
The same mobile phone was recovered from the shop of Sonu
at ltarsi upon the disclosure statement made by the appellant,
F vide recovery memo Ex.P-19.
36. In view of the aforesaid depositions, facts emerge as
under:··
(i) The appellant and Sonia (deceased) had been
G classmates and had developed intimacy. In spite of the fact
that they belonged to different castes, they had thereafter
gotten married, knowing fully well that their marriage would
not be approved by at least one of the two families.
(ii) Their marriage was not cordial and within an year of
H
ROHTASH KUMAR v. STATE OF HARYANA 911
[DR. B.S. CHAUHAN, J.]
such marriage, they had mutually decided to separate and A
had thus, filed a petition for divorce by mutual consent
under Section 13-8 of the Hindu Marriage Act, 1955,
before the Family Court, Rohtak. 'The first motion was
clear, and the case was fixed for second motion on
3.9.2004. Just before the said date, the appellant had met
8
Sonia (deceased), and had assured her that he would
agree to the said divorce in the second motion on
3.9.2004, before the Family Court at Rohtak.
(iii) The said information was furnished by Sonia
(deceased), to her mother Smt. Dhanpati Devi (PW.3), and C
it was in view thereof that Su be Singh (PW.1 ), father of the
deceased had come to Faridabad only to meet Sonia.
(iv) While reaching there, Sube Singh (PW.1) had been
informed by Ghanshyam (Security Guard), Arjun (Cook) D
and Bimla, Caretaker (PW.8), that the appellant had come
to meet Sonia, and that now she was lying dead in the
garden. Simla (PW.8) had also furnished him with all the
requisite details, as regards the visit of the appellant. Sube
Singh, father of the deceased, had lodged an FIR. Hence, E
criminal law was set into motion and the investigation
began.
(v) The Police had recovered the .dead body, as well as
various material objects lying near it, including a rope.
F
(vi) The post-mortem report suggests that Sonia had died
of asphyxia caused as a result of smothering and throttling,
and that it had taken hardly any time to kill her.
(vii) The appellant had stayed at the Taneja Guest House, G
by providing a fictitious name and address, and the next
day had tried to commit suicide. He had been chased by
the hostel staff, but· had managed to run away. While
running away, he had left a diary (Ex.P-54), a wrist watch
(Ex.P-56), and a letter (Ext.P-55).
H
912 SUPREME COURT REPORTS (2013] 3 S.C.R.
A (viii) On. 2.9.2004, the appellant had made certain
telephone calls from the mobile phone belonging to Sonia,
to the mother as well as to several other relatives of the
deceased, informing them about the murder of Sonia that
had been committed by him, and had further stated that
he would commit suicide.
B
(ix) A diary (Ex. P-54), a letter (Ex.P-55) and a wrist watch
(Ex.P-56), belonging to the appellant were recovered from
the Taneja Guest House. A suicide note had been written
in the said diary by the appellant, and a letter had also
c been written by him to the Superintendent of Police,
Faridabad, the District Collector, the Chief Justice, High
Court of Punjab & Haryana, and the Human Rights
Commissioner, suggesting his involvement. The recovery
memo of the same (Ex.P-5), bears the signatures of
D Jagatpal (PW.2) and Mahender Singh, employees of the
Taneja Guest House, Faridabad.
(x) The appellant had remained absconding for several
days, and after his apprehension, the mobile phone
belonging to Sonia was recovered from the shop of Sonu
E
at ltarsi, Madhya Pradesh on the basis of a disclosure
statement made by him. The disclosure statement made
by the appellant on the basis of which the recovery was
made, bears the signatures of the appellant and of a police
personnel as a witness.
F
(xi) The call records clearly prove that the mobile phone
belonging to Sonia (deceased), had been used even after
her death and that the same had been in the possession
of the appellant, as no body else could have used the
G same. Sonia had died before 2.30 p.m. on 2.9.2004. The
call records of her telephone, which have been exhfbited
before the court, clearly disclose the outgoing calls that
were made from her telephone 'to her mother and other
relatives, as has been referred to hereinabove at 1620.55;
H 1625.47; 1637.17; 1707.46; and 1744.03 as Exh.P.21.
ROHTASH KUMAR v. STATE OF HARYANA 913
[DR. B.S. CHAUHAN, J.)
(xii) During the investigation, the appellant had refused to A
participate in the Test Identification Parade, as he could
have been identified by Ghanshyam (Security Guard) of the
hostel, Arjun (Cook) and Bimla, Caretaker (PW.8), as well
as by the staff of the Taneja Guest House.
(xiii) Jagatpal (PW.2), though had turned hostile, has B
provided material information, and has also accepted his
signatures on the recovery memo and his statements, as
well as those of Mahender, the other attendant.
(xiv) The appellant has given a specimen of his hair to be c
compared with the· hair recovered from the place of
occurrence, and the FSL report {Ex:'P-8) that was tendered
as evidence has showed, that the hair that was recovered
from the place of occurrence, was found to be similar in
most of its morphological and microscopical
0
characteristics, to the sample of the hair provided by the
appellant.
37. In view of the aforesaid factors, the Trial Court, as well
as the High Court, have convicted the appellant and awarded
the sentences as referred to hereinabove. E
We have also been taken through the evidence on record,
as well as through the judgments of the courts below. Bimla,
Caretaker (PW.8), is definitely an independent witness. She
had "last seen together" the appellant and Sonia (deceased), F
just before her death, and we do not see any reason to doubt
the veracity of her statement. It is also on record that the
appellant had left alone from the· hostel. The appellant has not
furnished any explanation with respect to what could have
happened to Sonia (deceased) while she was with him, if he G
was not responsible for her death. No explanation was furnished
by him as regards why he had stayed at the Taneja Guest
House, by providing a fictitious name and false address and
nor was any explanation provided by him with respect to the
circumstances under which, the mobile phone belonging to H
914 SUPREME COURT REPORTS [2013] 3 S.C.R.
A Sonia, had come to be in his possession. Admittedly, this is a
case of a love marriage which had gone wrong. Owing to such
marital discord, they had decided to separate and to get
divorce by mutual consent. Therefore, it might have been
frustration which had forced the appellant to commit such a
heinous crime.
8
38. From the undelivered letter that had been written by
the appellant in the name of Superintendent of Police and to
others, in Ex.P-54 recovered from the Taneja Guest House, it
is evident that the appellant had developed intimacy with Sonia
C (deceased) much earlier, and had claimed to have married her
in a temple, though, the formal marriage between them had
taken place in the year 2003. The said letter reveals, that Sonia
(deceased} and her family members had tortured him mentally,
and had extracted a huge amount of money from him over a
o period of the past ten years. He had even persuaded his
friends, relatives and family members to give a loan to the
complainant, Sube Singh, which had never been returned by
him. Several threats had been made to the appellant by the
family of the deceased stating that they would involve him in a
E false dowry demand case, eliminate him. The family members
of the appellant had severed all relations with him.
In the suicide note (Ex.P-55), the same story has been
depicted. Thus, the feelings of the appellant towards Sonia
(deceased}, and her family members were such, that they could
F have given rise to a motive for him to commit the said offence.
39. The non-examination of Sonu, from whose shop, the
mobile phone was recovered, cannot be said to be fatal for the
reason that the recovery memo bears the signature of the
G appellant himself. One police Head Constable has also signed
the same as a witness, and it is not the case of the appellant
that he had been forced to sign the said recovery memo.
Similarly, we do not find any force in the submissions advanced
on behalf of the appellant, stating that the non-examination of
H Ghanshyam and Arjun from the girls' hostel, or of Mahender from
ROHTASH KUMAR v. STATE OF HARYANA 915
[DR. S.S. CHAUHAN, J:]
the Taneja Guest House, requires the court to draw adverse A
inference, as there is no need to provide the same evidence
in multiplicity. The appellant could have examined them or some
of them as defence witnesse(s). However, no such attempt was
made on his part.
B
40. A large number of discrepancies have been pointed
out by the learned counsel appearing on behalf of the appellant,
and some of them are reproduced as under:
A. The entry register maintained in the Girls Hostel for
visitors was never produced in court. c
8. The finger prints taken from the glass and tea cups
recovered from the hostel, to prove that the same
had been used by the appellant, did not test
positive.
D
c. The· rope allegedly used in the crime, was not
recovered, nor has any positive evidence been
produced to show that the appellant had gone to the
hostel armed with a rock.
E
D. A large number of girl students had been staying
in the hostel, and none of them were examined.
E. The postmortem report does. not in any way prove
the case of the prosecution, for the reason that the
throttling, smothering and breaking of various ribs F
of the deceased, may not have been caused by a
single person.·
F. The mobile phone recovered from !tarsi (M.P.) was
not deposited in the Malkhana.
G
G. The telephone number that had allegedly been
purchased by Sonia (deceased), and later
recovered, showed some variance.
H. The journey from Faridabad to !tarsi and from !tarsi
to Faridabad has not been proved. H
916 SUPREME COURT REPORTS [2013] 3 S.C.R.
A I. The Booking Register of the Taneja Guest House
does not prove that the appellant had stayed in the
said Guest House.
41. We have examined the aforesaid discrepancies
8 pointed out by the learned counsel. It may be stated herein that
some of the issues have been explained by the prosecution,
however, no attempt was ever made by the defence to put most
of these issues to SI Vinod Kumar (PW.20), the Investigating
Officer in his cross-examination. It is evident from his
C deposition that he had, in fact, answered all the questions that
were put to him in the cross-examination. However, it is
pertinent to clarify that most of these questions that are being
currently raised before us were not put to him. For example,
he has explained that nobody from the said market had been
ready to become the Panch witness for recovery of the mobile
D phone from Sonu's shop at ltarsi, and that even Sonu was not
ready to do so. Further, no question had been put to him in the
cross-examination regarding the different EMEi number of the
said mobile phone. The mobile phone that was recovered, bore
the EMEi No. 3534000004033852 (Ex.P-19), though the EMEi
E number of mobile phone that belonged to Sonia was
3534000004033853. Furthermore, no question had been put
as to why the mobile phone, after the recovery, had not been
deposited in the Malkhana. In light of such a fact situation, it is
not permissible for us to consider such discrepancies.
F
So far as the inconsistencies in the depositions of the
witnesses are concerned, none of
them can be held to be
material inconsistency.
42. The facts so established by the prosecution do not
G warrant further review of the judgments of the courts below by
this court. The appeal lacks merit and is, accordingly,
dismissed.
R.P. Appeal dismissed.
H
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