GA/52/2007 of STATE Vs K.S. ARORA and ORS. on 31 December 2012

JUDGMENT

Coram : Hon’ble Barin Ghosh, C. J.Hon’ble U.C. Dhyani, J.

U.C. Dhyani, J. (Oral)

Present Government Appeal was preferred by the State of Uttaranchal against the judgment and order dated 27.10.2004, passed by learned Addl. Sessions Judge / I F.T.C., Dehradun in Sessions Trial No. 38 of 1995, whereby accused / respondents K.S. Arora, Smt. Upendra Kaur alias Kukki, Smt. Priya Arora, Binny Arora and Yogesh Tyagi were exonerated of the charge of offences punishable under Sections 147, 148, 302 of IPC read with Section 149 of IPC and Section 201 of IPC giving them benefit of doubt.

2) A missing report (Ext. Ka-3) was lodged with Officer In-Charge, Police Station Bindal, Dehradun on 02.12.1993, by Major K.S. Arora relating to his son and son-in-law. According to Major K.S. Arora, on 01.12.1993, at 11:00 A.M., his son-in-law Sanjay Luthra and his son Binny Arora left the house saying that they were going to meet a friend and that they will get back by lunch. The son and son-in-law of Major K.S. Arora went to meet a friend. Since they did not come back till 02.12.1993, therefore, such missing report was lodged. Missing report (Ext. Ka-3) contained the address and signature of PW3 V.S. Madan, Advocate also, besides Major K.S. Arora.

report

3) On 04.12.1993, another complaint (Ext. Ka-4) was lodged by V.S. Madan (PW3) with Station Officer, Police Station Garhi Cantt. Dehradun, enumerating the facts contained therein that the informant has family terms with Sanjay Luthra and his family for the last many years. Informant was a practicing lawyer at Delhi High Court. Sanjay Luthra got married to Priya d/o Major K.S. Arora in April 1991 at Dehradun. After sometime, the relations between Sanjay and Priya became strained and after living together for two months, Priya returned to Dehradun. Priya filed a criminal case against Sanjay in the year 1991 at Dehradun and Sanjay filed a divorce petition in Bombay, which was decided ex-parte in his favour. Priya lodged a dowry harassment case against Sanjay, his mother and brother Sunil in Police Station Bindal, Dehradun. Sanjay was enlarged on bail in said case in April 1993 by an order of a Court at Dehradun. Informant V.S Madan alongwith Sanjay came to Dehradun in this connection. Sanjay, his mother and brother obtained a stay order from the Allahabad High Court. Informant alongwith the brother of

Sanjay came to Police Station, Bindal, Dehradun with the copies of stay order. After submitting copy of stay order at police station concerned, both of them visited the house of Major K.S. Arora. They met Major Arora, Smt. Kukki Arora w/o Major Arora and their daughter Priya Arora. Priya was carrying a beautiful child in her lap, who was born out of her wedlock with Sanjay. Informant tried to mediate between the estranged couple for the sake of child’s future. On coming to know about the birth of his son, Sanjay became emotional. Thereafter telephonic conversation started between Sanjay and Priya. Sanjay told Priya that he would try for the custody of his child with due process of law. Priya also invited Sanjay to visit her at Dehradun. In November 1993, Binny Arora, brother of Priya, visited Sanjay at Bombay and told him that now his family members were ready for reconciliation and Sanjay might keep his wife and child with him. Binny invited Sanjay to Dehradun for the purpose of taking back his wife and child. On this, the informant V.S Madan advised Sanjay that both the parties should meet at Delhi, as Sanjay was legally divorced with Priya and therefore, mutual consent of the parties was required. On 28.11.1993, both the parties met at Hotel Marina, situated at Delhi. They stayed there for two days. Both the parties entered into compromise on the terms that criminal cases against Sanjay and his family members would be withdrawn. Arora family insisted the informant V.S Madan to come with Sanjay to Dehradun. Sanjay was convinced. On 30.11.1993, informant and Sanjay reached Dehradun at 09:30 P.M. They took a room in Hotel Drona (managed and run by Garhwal Mandal Vikas Nigam Limited). Major Arora came there and took both of them for dinner at his residence. On Major Arora’s persuasion, Sanjay decided to stay at their house, but the informant V.S Madan came back to Hotel Drona. On the next day (01.12.1993), at 09:00 A.M., Major Arora came to the informant at Hotel Drona. Major Arora looked perplexed. On being enquired about Sanjay, Major Arora replied that yesterday they were busy talking to each other till late night and as such, Sanjay was sleeping. Major Arora insisted the informant to take another accommodation and on his request, he (informant) accompanied him (Major Arora) to Hotel Inderlok, where Major Arora arranged for his stay free of cost. Major Arora took the informant to ONGC with him. At about 01:00 P.M., when both of them reached Major Arora’s residence, Sanjay and Binny were not present in the house. On being asked, informant was told that both of them have gone to meet a friend and would surely come back by lunch. Informant, after having had his meals, returned to Hotel Inderlok at 04:00 P.M. At about 08:00 P.M., informant was told by Major Arora that they (Sanjay and Binny) have not returned. Informant and Major Arora started searching for them at various places, but to no avail. When informant told Major Arora that now it’s too late at night and they should lodge a complaint with the police, Major Arora said that it’s better to wail till morning. On 02.12.1993, a missing report was lodged with Police Station, Bindal in this regard. Unable to get any clue about the missing people, the informant intimated his brother, son and Sanjay’s brother Raveen telephonically. He also

telephonically informed Colonel Babbar, brother-in-law of Sanjay, who was at Chandigarh. The relatives reached Dehradun on 04.12.1993 by noon. Informant, brother and brother-in-law of Sanjay went to Major Arora’s house. Colonel Babbar made a comprehensive inquiry with Major Arora and said that he had every apprehension that they had a hand in this missing episode. On this, Major Arora, his wife and Priya, all got scared. On being told by Colonel that police would certainly unearth the truth one day or the other, the three left for another room. After sometime they all came out with folded hands, started sobbing and said that they had committed a great sin and they should be pardoned. They apprehended that Sanjay might take his child with him and might again desert his wife, therefore they killed Sanjay with the help of Binny and one of his friends. They also confessed that Binny and his friend wrapped the dead body in quilt, curtains alongwith bed sheet and took the same in their Maruti car and disposed it of in the hills of Mussoorie. They further told that Binny intimated them over telephone that they had thrown the dead body in a deep ravine near Kempty Fall and it was impossible to retrieve the same. Informant summed up his complaint by alleging that Major Arora, his wife Kukki and daughter Priya alongwith son Binny and his friend had killed Sanjay in their own house.

4) On the basis of said complaint, chik FIR (Ext. Ka-15) was lodged by the police on 04.12.1993, at 07:35 A.M. A Case Crime No. 215 of 1993 in relation to offences punishable under Sections 302 and 201 of IPC

read with Section 34 of IPC was registered against aforesaid five accused persons. After interrogating the witnesses and on completion of investigation of the case, a charge sheet (Ext. Ka-45) against accused persons was filed in respect of the same offences.

5) When the trial began and prosecution opened it’s case, charge in respect of offences punishable under Sections 147, 148, 302 of IPC read with Section 149 of IPC and Section 201 of IPC was framed against the accused persons, who pleaded not guilty and claimed trial. As many as 18 witnesses were examined on behalf of the prosecution. They were – PW1 Vishwa Bahadur, PW2 Dr. A.P. Mamgain, PW3 V.S. Madan (informant), PW4 Colonel D.K. Babbar, PW5 K.D. Dangwal, PW6 Shyam Singh, PW7 Constable Sidhi Lal, PW8 Manoj Srivastava, PW9 Head Constable Narendra, PW10 Somnath, PW11 S.I. Mohd. Waseem, PW12 Sakla Nand Dobhal, PW13 P.V.V.S. Murti, PW14 S.B. Singh, PW15 Inspector Jagvir Singh, PW16 S.I. K.P. Sharma, PW17 S.I. Chatar Singh and PW18 Shyam Sahay Shukla. Incriminating evidence was put to the accused persons under Section 313 of Cr.P.C., in reply to which they said that evidence against them was false and they were falsely implicated in the case. No evidence in defence was adduced. After hearing both the sides, learned trial court acquitted the accused-respondents of the charge framed against them giving them benefit of doubt. Aggrieved against said judgment and order, State has preferred the present Government Appeal.

6) Statement of PW1 Vishwa Bahadur was recorded by learned Addl. Chief Judicial Magistrate II, Dehradun on 01.01.1994. Vishwa Bahadur was Security Guard in ONGC. In his statement under Section 164 of Cr.P.C., he said that he was a retired Sepoy of Indian Army. He retired in the year 1982. When he was posted in Jammu, then Major K.S. Arora came to Jammu on his posting. He (PW1) knew Major K.S. Arora since then. Major Arora was Chief Security Officer of ONGC. Major Arora got Vishwa Bahadur employed in ONGC in the year 1982. Major Arora also provided PW1 with a room at 4, Mall Road, Dehradun. PW1 rendered personal service to Major Arora in lieu thereof. Vishwa Bahadur further said that on 01.12.1993 around 07:00-08:00 A.M., Vishwa Bahadur pushed the main door of Major Arora’s residence. He was relieved from the night duty and came to Major Arora to enquire about petty household work, if any. Major Arora opened the main door, then, Vishwa Bahadur went to his room. [Major Arora did not assign any work to PW1]. After 2-4 minutes, Vishwa Bahadur heard the shrieks of someone. He peeped inside through the window and saw that one Yogesh Tyagi was killing Sanjay Luthra with dao(a heavy sharp edged weapon). Binny s/o Major K.S. Arora, Major K.S. Arora himself and his wife and daughter of Major Arora (estranged wife of Sanjay Luthra) were also inflicting blows of knives, patal, stick etc. Estranged wife of the victim was saying that let him face the music for divorcing her. Sanjay Luthra managed to run from the room, but fell in the drawing room and breathed his last. Major K.S. Arora called Vishwa Bahadur and asked him to help in wrapping the dead body. Vishwa Bahadur started shivering with fear. On this Major Arora said that you better leave and also threatened him to face the consequences, if he dared to disclose the same to anyone. Vishwa Bahadur went to Mainpuri (U.P.). Such statement was given by Vishwa Bahadur (PW1) on 01.01.1994. When PW1 came to the witness box, he retracted from hisstatement recorded under Section 164 of Cr.P.C. It was not-possible to convict the accusedrespondents on the basis ofsuch retracted statement under Section 164 of Cr.P.C.

7) PW2 Dr. A.P. Mamgain was the Medical Officer who conducted the autopsy on the dead body of victim on 05.12.1993, at 03.15 P.M. The victim sustained 17 ante mortem injuries, most of them were incised wounds coupled with a few lacerated wounds. The Medical Officer opined in his autopsy report (Ext. Ka-1) that the cause of death of the victim was shock and haemorrhage as a result of ante mortem injuries.

8) PW3 V.S. Madan was the informant who wrote the complaint with the police. This witness was not the eyewitness. He narrated the circumstances under which thevictim was killed. We need not repeat what was said by PW3 in his examination-in-chief, in as much as the same was almost verbatim reproduction of the contents of complaint Ext. Ka-4. He (PW3) visited the house of Major K.S. Arora alongwith victim on 30.11.1993. According to PW3, he did not stay at Major’s house. Major K.S. Arora came to him on the next day but the victim did not. He also spoke about the extra judicial confession made to him by the accused-respondents. Binny made a phone call at his residence at Dehradun that the dead body of Sanjay Luthra was thrown in a deep ravine at Kempty Fall and the same was impossible to be retrieved from there.

9) Entire prosecution case was dependent upon the sole evidence of PW3 V.S. Madan, Advocate-cum- family friend of the victim. It was important to notice the kind of relationship PW3 was having with the victim. The whole story starts from victim’s coming to Dehradun, where Major K.S. Arora resided. The victim had a matrimonial dispute with the daughter of Major Arora. A decree of divorce was granted by a competent court at Bombay in victim’s fovour. A stay order was granted to the victim and his family members by Hon’ble Allahabad High Court in a petition filed under Section 482 of Cr.P.C. Victim and his family members got relief in the criminal proceedings filed by the estranged wife of victim at Dehradun. The dispute relating to the custody of their 1½ year old child still remained. In other words, although matrimonial dispute between the victim and Major Arora’s daughter was settled through a decree of divorce, but the question of custody of their child still persisted. In order to settle the custody of their 1½ year old child, the victim came to his father-in-law at Dehradun. Victim alongwith the son of Major Arora, allegedly, went to meet a friend, but did not reach by the next morning and, therefore, missing report was filed by the father-in-law of the victim. The prosecution story is that the victim was killed in his father-in-law’s house and his dead body was thrown in Kempty Fall at Mussoorie. According to the prosecution, a similar bed sheet to the bed sheet in which the dead body of victim was wrapped, was found in the house of Major Arora. Will a prudent person believe such evidence?

10) The prosecution story was that the victim was killed at Major Arora’s house on 01.12.1993 at around 07:00-08:00 A.M. It is the allegation that after killing the victim, the dead body was thrown in a ravine near Kempty Fall at Mussoorie. It was said that Sanjay Luthra r/o Andheri, Bombay checked-in Drona Hotel on 30.11.1993 at 08:00 P.M. He came to Dehradun from Delhi for a personal piece of work. He stayed alongwith another person (PW3 V.S. Madan) in Room No. 208 of Drona Hotel. The victim made first few entries alongwith his signature in the GMVN Register. A look at the extract of Register of Drona Hotel (Ext. Ka-2) will reveal that the victim left the hotel on 01.12.1993 at 10:40 A.M. The question is –if the victim left Drona Hotel at 10:40 A.M. of 01.12.1993, how can it be said that he was murdered at around 07:00-08:00 A.M. on the selfsame day at the residence of Major Arora? How was it possible that a dead man walked into Drona Hotel and checked-out at 10:40 A.M.? He was a mortal. He was not a ghost. Thus, the above vexed question remains unresolved till date. It was not possible to fathom with the said story. It was not possible to reconcile between two contradictory situations i.e. killing of the victim between 07:00-08:00 A.M. and his checking-out at 10:40 A.M. on the selfsame day. The time of check-out, it appears, was mentioned by the hotel staff. The victim put in his signature in the last column of the Register of GMVN. It has come on record that PW3 V.S. Madan shifted from Drona Hotel to Inderlok Hotel on 01.12.1993 at 04:30 P.M. (on the request of Major Arora, as per PW3’s statement). {V.S. Madan remained in Inderlok Hotel till 10:00 A.M. of 05.12.1993}. Thus the prosecution story suffers a major setback in view of aforesaid material contradictions.

11) Ext. Ka-3 was a report about the missing persons, lodged by Major K.S Arora. In his statement under Section 313 Cr.P.C., Major K.S. Arora said that missing report was given under compulsion. Although, Ext. Ka-3 contained the signatures of Major K.S. Arora, still it was doubtful whether Ext. Ka-3, infact, was written by Major Arora, in as much as a literate person will either write a missing report in his own handwriting or get the same written by his Advocate. There was no evidence to suggest that Ext. Ka-3 was written by Major Arora, although it is being mentioned at the cost of repetition that the same contained his signatures as well as the signatures of PW3 V.S. Madan. To our mind missing report was doubtful.

12) Prosecution also relied upon recovery memo(Ext. Ka-5) wherein one quilt, six curtains and two bed sheets were taken in possession by the police. Even if the recovery of bed sheets, quilt etc. was to be admitted, the same did not connect the bed sheets etc. to the crime in question. The complaint in the instant case was filed by PW3 on 04.12.1993, at 07:35 P.M. Dead body of the victim was recovered on 03.12.1993 in the morning. It cannot therefore, be said that the confession made by the accused persons led to the recovery of dead body of victim. The recovery of dead body of the victim at the instance of accused persons cannot be accepted.

13) In the report Ext. Ka-47, received from Forensic Science Laboratory, it was mentioned that human blood was found on the articles sent for examination, but bloodstains on some of the articles like wooden scrap etc., were found disintegrated and, therefore, no definite finding could be given by FSL.

14) In such view of the matter, prosecution was unable to prove the charge against the accused-respondents beyond reasonable doubt. Learned court below has dealt with the facts and marshalled the evidence in great detail. We are unable to take a view contrary to what was taken by the learned court below.

15) Government Appeal fails and the same is dismissed.

(U.C. Dhyani, J.) (Barin Ghosh, C.J.)