ROHTASH KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) This appeal has been filed against the judgment and order dated 5.2.2009 passed by the 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 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 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, are as under:

(3.) Dr. Sushil Balwada, learned counsel appearing on 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 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 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 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 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 Itarsi (M.P.) cannot be relied upon, as this place is far away from Faridabad. There are material inconsistencies in the statements of the witnesses. The chain of circumstances is not complete. The prosecution 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.