Holding

The Supreme Court held that the prosecution failed to prove the guilt of the accused beyond reasonable doubt, and the High Court's acquittal was justified.

Summary

The State alleged that Dr. Mahender Singh Dahiya strangulated his wife Namita during their honeymoon in Brussels, dismembered her body and disposed of the parts, while the prosecution failed to produce a weapon, reliable forensic identification of the body parts, or a clear motive. The trial court convicted Dahiya under IPC s.302 and s.201, but the Delhi High Court acquitted him, finding the circumstantial evidence insufficient and the forensic reports unreliable. On appeal, the Supreme Court examined the adequacy of the circumstantial chain, the absence of motive, the inconsistencies in forensic and identification evidence, and the irrelevance of Dahiya's absconding. It concluded that the prosecution did not establish guilt beyond reasonable doubt and that the High Court's acquittal was justified. Consequently, the appeal was dismissed, leaving the respondent acquitted of the charges.

Issues considered

The prosecution's circumstantial evidence was sufficient to prove murder under IPC s.302.
Whether a motive is essential for conviction in a case based on circumstantial evidence.
The reliability of forensic evidence linking the recovered body parts, blood, and clothing to the victim.
The admissibility and weight of identification marks and palm‑print evidence.
The relevance of the accused's absconding as an adverse inference.
The existence of a weapon of offence and its connection to the alleged crime.

Legislation cited

Code of Criminal Procedure, 1973s. 135, s. 136, s. 137, s. 138, s. 139, s. 140, s. 141, s. 142, s. 143, s. 144, s. 145, s. 146, s. 147, s. 148, s. 149, s. 150, s. 151, s. 152, s. 153, s. 154, s. 155, s. 156, s. 157, s. 158, s. 159
Indian Evidence Act, 1872
Indian Penal Code, 1860s. 201, s. 302

Subjects

circumstantial evidencemotiveforensic identificationmurderdismembermentabscondingburden of proofidentification of body partsblood evidenceclothing identificationweapon of offence

Judgment

,,

[2011) 1 S.C.R. 1104

A STATE THROUGH C.B.I.
v. .J.._.
MAHENDER SINGH DAHIYA v
"\

(Criminal Appeal No. 1360 of 2003) ~

JANUARY 28, 2011
B
[B. SUDERSHAN REDDY AND SURINDER SINGH
NIJJAR, JJ.]
"r" ~
Penal Code, 1860: s.302 and s.201 - Diabolic murder--
c '
Strangulation to death and dismemberment and mutilation of
body parts - Respondent an Indian orthopedic doctor got
engaged with deceased and shifted to London to stay with ~-
laws - Marriage took place subsequently - Honeymoon t 'p
was arranged for 5 days - Respondent returned from trip after
D 2 days without deceased and stated that the deceased
abandoned him - Thereafter he absconded and remained
Underground until arrest - Body parts found in the rubbish bin
~ . ~

and lake near the hotel where the couple stayed and identified
to be that of deceased - Allegation against respondent that
E he strangulated his wife to death on the first night of
honeymoon and thereafter dismembered and mutilated parts
of her body and disposed them of 1 Trial court held that
circumstances pointed out towards the guilt of the respondent
and convicted him u/s.302 and s.201 - Acquittal by High
Court on the ground that the prosecution failed to connect the
-
F
respondent with the alleged murder - On appeal, held:
Prosecution had miserably failed to connect the respondent
with the alleged murder of his wife - Resentment of the
respondent to the friendly behaviour of the deceased towards
the other men would not be sufficient to hold that he had the
G necessary motive to kill the deceased - There was nothing )..- '-

to suggest that the deceased or her family members had
apprehended any harm or threat to life of deceased at any
stage till the couple left for the honeymoon - Given the

H 1104
STATE THROUGH C.8.1. v. MAHENDER SINGH 1105
DAHIYA

previous attitude of the deceased, it was possible that she had A
walked out on her husband - Explanation given by
}> respondent consistently from beginning was that the deceased
had left him voluntarily - As regards the circumstances
relating to the state of affairs that existed in the hotel room,
the evidence of the hotel staff was inconsistent - Finger print B
expert was not able to connect the palm prints of body parts
recovered with the palm prints of the deceased - The reports
submitted by the doctors contained numerous discrepancies
- That apart the identification marks given by the witnesses
did not coincide with the reports and therefore, no reliance c
could be placed upon them for establishing the identity of
these body parts as that of the deceased - Articles and
clothes taken on trip by deceased not produced for
. identification by witnesses at the time of trial- There was no
reliable evidence to indicate that the blood that was recovered 0
from the bathroom of hotel room definitely belonged to the
deceased - An adverse inference against the respondent
cannot be drawn merely because he remained in hiding till
he was arrested - Prosecution a/so did not produce any
evidence with regard to the recovery of any weapon of offence E
- Order of acquittal was justified.

Criminal law: Motive - Held: In cases based on
circumstantial evidence, motive for committing the crime
assumes great importance - Absence of motive would put the
court on its guard to scrutinize the evidence very closely to F
ensure that suspicion, emotion or conjecture do not take the
place of proof - In a case where there is motive, it affords
added support to the finding of the court that the accused was
guilty for the offence charged with.
G
Evidence: Suspicion no matter how strong cannot, and
should not be permitted to take the place of proof- Therefore,
courts are to ensure a cautious and balanced appraisal of the
intrinsic value of the evidence produced in Court.
1106 SUPREME COURT REPORTS [2011] 1 S.C.R.

A The prosecution case was that the respondent was
guilty of murdering his wife. The respondent was an
Orthopedic surgeon. He belonged to a village called
Turkpur, District Sonepat. PW-48, a native of Punjab had
migrated to England in 1962. He was settled there with
B his wife (PWUK-1) and children. The victim-deceased was
his daughter. In 1978, PW-48 visited India to find suitable
Indian boy for marriage with the deceased. They found
the respondent to be a suitable match for her. The
engagement ceremony was held between the respondent
c and the deceased on 31st August 1978 at village Turkpur
followed by a marriage ceremony. However, as per the
understanding of the parents of the deceased, the said
marriage was to be treated as engagement. A registered
marriage was to take place in London subsequently.
Therefore, the marriage was not consummated and the
0
deceased along with her parents returned to London on
the same night. As arranged, the respondent reached
London on 27th February, 1979 and started living with his
in-laws. At the same time, he pursued his medical studies
and got himself registered as a post graduate student.
E PW-48 purchased a house in the joint name of the
deceased and the respondent for 20,000 UK Pounds. A
joint bank account was also opened in the name of the
deceased and the respondent. .

F On 5th April, 1979, on the occasion of the birthday
party of younger daughter of PW-48, all friends (boys and
girls) of the three daughters of PW-48 were invited in the
party. After the party, the respondent started abusing the
whole family. He was aggressive and alleged the
G deceased to be characterless as she had been dancing
and mixing up with boys. The deceased was upset with
the behaviour of the respondent. She told her mother that
it did not seem possible for her to spend the rest of her
life with the respondent. The next morning the family
H discussed about the previous day incident. When the
STATE THROUGH C.B.I. v. MAHENDER SINGH 1107
DAHIYA

respondent was told that the deceased wanted to cancel A
the engagement, he apologized for his conduct. During
the night of 10th April, 1979, the deceased wrote a letter
to the respondent suggesting that wedding should be
cancelled in the month of May, until both of them were
ready for the same. In reply, the respondent also wrote a s
letter to the deceased.

On 26th May, 1979, the marriage between the
respondent and the deceased was registered in London.
A honeymoon trip was arranged for five days. On 27th
May, 1979, they left for the honeymoon trip. They carried C·
two suit cases, one of red colour belonging to the
·deceased and the other of brown colour belonging to the
respondent containing their cloths and other articles. All
the tourists in the group stayed in a Hotel. The deceased
and the respondent checked into room no.415. After D
sometime they went for a short sight seeing tour
"Brussels by Night". They returned to the hotel at' about
11 A.M. and retired to their room. Thereafter, the
prosecution version · was that .the respondent
strangulated the deceased to death in the hotel room and E
theri dismembered and mutilated parts of her body and
disposed them of in the different part of city of Brussels.
Thereafter, the respondent entered UK on the same day
and withdrew· 200 UK Pou"ds from the joint account he
had with the deceased and then went to the house of his F
in-laws. He· was carrying two suitcases. He did not give
satisfactory explanation to his in-laws about the
whereabouts of the deceased. He stated that she had
abandoned him at Brussels on the morning of 28th May,
carrying away her clothes and money. The respondent G
wanted to get away from the house, but he was restrained
· by the family members with the assistance· of neighbour.
Thereafter, PW-48 too.k the respondent to lodge a
missing person's report about the disappearance of the
deceased. 011' the way back from the police station H
1108 SUPREME COURT REPORTS [2011) 1 S.C.R.

A alongwith his father-in-law, the respondent escaped by
jumping onto a running bus. Thereafter, he stayed in
·YMCA, London without disclosing his identity. He left for
India via Germany and reached Delhi on 6th June, 1979.
He afterwards remained underground and absconding
s and could not be traced until 9th May, 1983. He was hiding
in a village in District Lalitpur, UP where he had taken up
the practice of general medicine.

The trial court held that all the circumstances were
C proved in favour of the prosecution and convicted the
respondent under Section 302 IPC and 201 IPC and
sentenced him to imprisonment for life.

The High Court acquitted the respondent of both the
charges. The High Court held that the finding of trial court
D that the resentment of the respondent to the friendly
behaviour of the deceased towards the other men
provided strong motive to the respondent for committing
murder of his wife was not plausible; that the respondent
had not disputed that the deceased was with him in the
E room throughout the night, however, she left him in the
morning of 28th May, 1979; that the evidence of
witnesses to project a certain state of affairs in the hotel
room to prove that the respondent had a guilty mind was
inconsistent; that although the custody of all the clothes
F which the deceased had taken on the honeymoon trip
was taken, but they were not produced for identification
by the witnesses; that no reliance could be placed on the
reports presented by the prosecution for the purpose of
establishing the identity of the body parts as that of the
deceased; that the reports of Stomatologist (PWBG-20)
G were inconsistent and, therefore, not reliable; that the
prosecution failed to place on record any cogent
evidence with regard to the blood group of the deceased;
that there was no reliable evidence to indicate that blood
that was recovered from the bathroom of room no.415
H
STATE THROUGH C.B.I. v. MAHENDER SINGH 1109
{ DAHIYA
/

belonged to the deceased; that there was no recovery of A1
> weapon and, therefore, the prosecution failed to connect
the respondent with the alleged murder. The instant
appeal was filed challenging the order of the High Court.
·Dismissing the appeal, the court B
Held: 1.1. Undoubtedly, the instant case
demonstrated the actions of a depraved soul. The
.. >---r manner in which the crime was committed in the instant
case, demonstrated the depths to which the human spirit/
soul can sink. But no matter how diabolical the crime, the C
burden remains on the prosecution to prove the guilt of the
accused. Given the tendency of human beings to become
emotional and subjective when faced. with· crimes of
depravity, the courts have to be:e~tra cautious not to be
swayed by sttong sentiments of repulsion and disgust. D
1 ~ It is in such cases that the court has to be on its guard
and to e.nsure that the conclusion reached by it are not
influenced by emotion, but are based on the evidence
produced in the court. Suspicion l"JO matter how strong
cannot, and should not be permitted to take the place of E
proof. Therefore, in such cases, the courts are to ensure
a cautious and balanced appraisal of the intrinsic value
1
of the evidence produced 1n Court. [Para 19] [1135-A-D]
1.2. The High Court has examined the entire evidence
dispassionately and with circumspection. The High Court F
systemati~aUy and chronologically examined the series
of incidents/circumstances relied upon by the
prosecution to establish the guilt of the respondent. In
cases based on circu'mstantial evidence, motive for
Committing the crime assumes great importance. In such G
circumstances, absence of motive would put the court
on its guard to scrutinize the evidence very closely to
ensure that suspicion, emotion or conjecture do not take
the place of proof. A motive is something which prompts
a person to form an opinion or intention to do certain H
1110 SUPREME COURT REPORTS [2011] 1 S.C.R.

A illegal act or even a legal act with illegal means with a
view to achieve that intention. In a case where there is
motive, it affords added support to the finding of the court
that the accused was guilty for the offence charged with.
But the evidence bearing on the guilt of the accused
B nonetheless becomes untrustworthy or unreliable
because most often it is only the perpetrator of the crime
alone who knows as to what circumstances prompted
him to adopt a certain course of action leading to the
commission of the crime. In the instant case, the
c conclusion· recorded by the High Court was in
accordance With the said principles. Merely because the
respondent o~je~~ed Jo
the behaviour of the deceased
towards her male friei:tds at the birthday party of her sister
would not be sufficient to hold that the appellant had the
necessary motive to kill her~)f ,is inconceivable that the
0
respondent would have rtiarried'the deceased only for the
-Purpose of committing her murder ·and that too on the
very first night of their honeymcion: It was in fact il'l the
interest .of .the respond.ent '?'that the deceased had
remained'.·aiive. The succ·e~s of l\!s very obj~ctive to
E remain permanently in ·England was dependent op
the
continila'nce of his marriage for at least another year.
[Paras 20. 21, 23] [1135-E-F; 1137-A~B; 1137-F; :1,.138-D-G;
113~-A-B] ' . .

F Hanumant Gbvlnci Natg[mdkar v.- State of M. P. 1952 SCR
1091 ; Naseem A,l:imed v.·Delhi Admn·(1974) 3 $C.~ '..668;
Surinder Pa/Jai11 lh,'Df/lhi Administration 1993 SUPP..(3) SCC
681; Tarseem Kumarv: Delhi Administration 1994 ~upp:(3)
sec 361; Subedar ..'fewari v. Staff/ of u.P. 1989 .$upp·(1.)
G SCC 91; Sures/f Ctfaridra Bahari v.. State of Bihal'.1995' Supp
(1) sec 80 - relied on. ,· · ., · ··
. . ·' .. { . ., .. .
1.3. The High Court correctly concluded' that the two
letters ltxt.CW~13 and Ex.CW-14 exchanged between the
deceased and the respondent on 10th April, 1979 would
H tend to show that respondent was in fact trying to make
STATE THROUGH C.B.I. v. MAHENDER SINGH 1111
DAHIYA

amends after the birthday party on 5th /6th April, 1979. A
-> There was no untoward incident thereafter. The marriage
was duly registered on 26th May, 1979 and that the
couple voluntarily left for the honeymoon. The High Court
correctly concluded that it was highly improbable to
comprehend that respondent had a pre-determined mind B
or motive to cause the death of the deceased on the
honeymoon night itself at the first available opportunity
~-r of being in the company of the deceased in a closed
room as suggested by the prosecution. Had the attitude
of the parties been as suggested by the prosecution, c
they would not have agreed to a marriage followed by a
honeymoon trip outside London. There was nothing to
suggest that the deceased or her family members had
apprehended any harm or threat to life of the deceased
at any stage till the couple left for the honeymoon on
,. ~~
morning of 27th May, 1979. [Paras 24, 25] [1139-C-D;
D
1140-F-H; 1140-A]
2. The explanation given by the respondent
consistently from the beginning was that the deceased
had left him voluntarily early in the morning of 28th May, E
1979. It was also his case that she married him only under
pressure from her parents. She had purchased a new
suitcase in which she packed most of her clothes
immediately upon returned from the "Brussels by Night"
tour. The red suitcase with which she had traveled from F
London to· Belgium was left with the respondent
containing some of her clothes. This suitcase even
though had a blood stain was carried back to the house
of the deceased's parents by the respondent himself. It
is inconceivable that a person who has committed the G
~
murder of his wife and has used the said suit case for
storing and carrying the body parts would bring it back
to England risking his own safety. The respondent also
narrated before the police that his wife had left him
voluntarily on the morning of 28th May, 1979. This fact H
1112 SUPREME COURT REPORTS [2011] 1 S.C.R.

A was further reiterated by him in the letter to the Prime
Minister <?f India. Given the previous attitude of the -./...,.,
deceased, it was possible that she had walked out on her '

husband. The last seen evidence would not necessarily
mean that the respondent had killed his wife. [Paras 27,
B 28] [1140-E-H; 1141-A-E]

3.1. The most important circumstance relied upon by
'the prosecution related to the state of affairs which
existed in Room No.415 of Hotel Arenberg and the ''I"'

c behaviour pattern exhibited by the respondent on the
morning of 28th May, 1979. This was sought to be proved
by the evidence given by three witnesses, namely,
PWUK-12, PWBG-22 and PWBG-2. The High Court
rejected the evidence of the tour guide {PWUK-12) as ·
being inconsistent. The High Court noticed that this
D witness had gone up to room no.415 to inform the couple
that the tour party was ready to leave. He knocked on the -r "
door. It was half open. He found the respondent
perspiring but at the same time assumed his behaviour
to be quite normal or non-exceptional. The High Court
E also noticed that this witness had prepared two reports
after the termination of the tour. None of the two reports
mentioned about the abnormal behaviour of the
respondent. In fact, in one of the reports, this witness ....
mentioned the fact that the father-in-law of the respondent
F had told him that the deceased had abandoned the
respondent on the morning of 28th May, 1979. The High
Court was justified in concluding that this statement
supported the defence plea. [Paras 29, 30] [1141-F-G;
1142-A-D]
G
3.2. In rejecting the evidence of the chamber maid of ~
the hotel, PWBG-22, the High Court noticed that this
witness was examined by the police on a number of
occasions, but she could not even give the correct room
number. She actually stated that she visited room no.410.
H
STATE THROUGH C.B.I. v. MAHENDER SINGH 1113
DAHIYA
The High Court also concluded that from her evidence it A
> became apparent that the respondent did not even put a
latch on the door nor did he take any extra precaution to
keep the room closed. This witness was able to enter the
room without knocking. The High Court, however,
noticed that this witness did not find any incriminating B
article like the body or body parts either in the room or
in the bathroom, nor she found even a trace of blood on
. >---;r the carpet or on the wall. This witness had herself stated
that the respondent had left the room unatt~nded
knowing perfectly well that this witness could enter the c
room in his absence. The High Court correctly assessed
the evidentiary value of the statement of this witness.
[Paras 32, 33] [1143-A-H; 1144-A]
3.3. It was only after very careful consideration of the
evidence of all the witnesses that the High Court D
> .,. concluded that the behaviour of the respondent could not
be said to be consistent with the guilt of the'respondent.
The High Court correctly noticed that no explanation was
forth coming as to where the body or dismembered body
parts could have been concealed by the respondent E
throughout the night of 27th/28th May, 1979 as well as the

.. morning and the afternoon of 28th May, 1979. The
suggestion of the prosecution that the body might have
been kept either in the cupboard or under the bed was
correctly held to be conjectural. [Para 34] [1144-B-D] F
4.1; The High Court noticed that police had already
collected and seized various articles and things from the
house of PW-48. The High Court reached the appropriate
. conclusion that the possibility of the garments and
~
G
articles having been planted by the police by obtaining
the same from the house of the deceased with the object
of fixing the identity of the body parts belonging to the
deceased by means of the clothes cannot be ruled out.
No contemporaneous recovery memo was prepared by
H
1114 SUPREME COURT REPORTS [2011] 1 S.C.R.

A the police on 29th May, 1979 itself. There was omission
of the details of the allegedly recovered clothes in the
statement of the witnesses. The prosecution had
allegedly recovered the clothes the deceased had taken
on the trip. The deceased's wedding dress was stated to
B have been recovered as part of the clothings. The High
Court correctly observed that ordinarily a woman would
not carry her wedding dress on her honeymoon trip. The
High Court also noticed that though the prosecution had
taken custody of all the clothes which the deceased had
c taken with her on the honeymoon trip, they were not
produced at the trial for identification by the witnesses.
Only photographs of the clothings, which had been
allegedly taken on 12th June, 1979 i.e. after 16 days, were
produced. [Paras 36, 37) [1146-B-F]
D 4.2. The High Court correctly took view that the
prosecution was duty bound to produce the clothings at -,.
the trial. It was through these clothings and articles that
the prosecution had sought to establish the identity of the
deceased. The High Court correctly recorded the
E conclusion that on consideration of the relevant evidence
of the witnesses and various documents on record, the.
prosecution had miserably failed to establish the
recovery of clothes or shoes by means of any cogent and ...
reliable evidence. The identification of the clothings and
F shoes as belonging to the deceased through the
testimony of the parents of the deceased (PW-48 and
PWUK-2) was also not sufficient to discharge the burden
of proof which lay on the prosecution. The identificati.on
of the shoes by PW-48 was not made in the prese'nce of
G any police officer. He was unable to remember if any
police officer was present or not at the time of the ~
identification.· The High Court drew the only logical
conclusion from the said that this witness was not
consistent so far as the identification of the clothes were
H concerned. [Para 38) [1146-G-H; 1147-A-F]
STATE THROUGH C.8.1. v. MAHENDER SINGH 1115
DAHIYA

5. A perusal of provisional and the final report of A
Stomatologist showed that initially the report stated that
. the individual was at-least 30 years old and of North-
African type. At the end of the report, it was stated that
the individual should be between 29-30 years only. This
opinion underwent a change by the time the final report B
was prepared. It was then stated that the "Individual
belonging to the female sex whose age is presumed
between 20 and 30 years, and belonging to North-African
Indian type." The difference between the two reports was
so glaring, understandably, the High Court was c
compelled to hold that the second report was clearly an
afterthought and deliberate improvement over the earlier
report. The High Court appropriately concluded that this
must have been made to cover up the first report which
did not connect the body parts with that of the deceased 0
in as much as age of the deceased was stated to be
around 25 years. In fact, it is a matter of record that the
deceased was born in 1956, that would make her only 24
years at the relevant time. [Para 45] [1152-A-E]

6.1. The mother. of the deceased, PWUK-1, had stated E
that the deceased had a scar mark on her left knee. She
also stated that the deceased had three inoculation marks
on her shoulder. The High Court noticed that this witness
was, however, not able to give details of any identification
marks on her other children. This would be sufficient to F
justify the conclusion reached by the High Court that
_.,,,,,,. :'· PWUK-1 and PW-48 were not aware/sure of any
identification marks of the deceased. The High Court,
therefore, observed that a possibility cannot be ruled out
that these witnesses may have given these marks after G
-41 the disclosure of such marks in the postmortem
examination's report. [Para 46] [1153·A~E]

6.2. The finger print expert was' not able to conclude
that the evidence produced connected the palm prints
H
1116 SUPREME COURT REPORTS [2011] 1 S.C.R.

A with the palm prints of the deceased. The reports
submitted by the doctors contained numerous
discrepancies. That apart the identification marks given
by the witnesses did not coincide with the reports.
Therefore, the High Court rightly concluded that no
B implicit reliance could be placed upon them for the
purpose of establishing the identity of these body parts
as that of the deceased. [Para 47] [1153-F-H]

7 .1. PW-48 only stated that the blood group of the
deceased was 'O', but even he was not able to say
C whether it was 'O+' or '0-'. The High Court quite
appropriately observed, on the basis of the opinion of the
examining experts, that more than fifty per cent population
of Belgium has '0' blood group. In such state of affairs,
the High Court was constrained to conclude that the
D prosecutio11 was not able to establish even this limb by
means of cogent and reliable evidence. [Para 48] [1154-
0-F]

7.2. There was no reliable evidence to indicate that
E the blood that was recovered from the bathroom of room
no. 415 definitely belonged to the deceased. The only
drop of blood that was found was at the base of the bidet,
in the bathroom. The bathroom was used successively
by different tourists occupying the room. This apart, the
F very recovery of the blood stains from the bidet seemed
highly doubtful. The evidence of the Manager of the hotel
in whose presence the blood stains were allegedly lifted
was that many tourists had occupied room no. 415
between 29th May, 1979 and 12th June, 1979. According
G to him, no tourists/guests ever complained of any blood
spot on the bidet. The first ever discovery of blood was
stated to be on 12th/13th June, 1979, i.e., about 14 days
of the alleged incident. If the blood stains lifted from the
bidet were of a person who was killed on 28th May, 1979,
the same could not be of i;ed or red brown colour. The
H
STATE THROUGH C.B.I. v. MAHENDER SINGH 1117
DAHIYA

colour of the stain would have been blackish brown. The A
,'~ High Court was wholly justified in rejecting the evidence
with regard to the recovery of blood from the bidet. [Para
50] [1155-F-H; 1156-A-B]
8. An adverse inference against the respondent B
cannot be drawn merely because he remained in hiding
till he was arrested by the CBI. The subsequent conduct
-~,....
of the respondent was not consistent with the expected
conduct of a guilty person. If the respondent had any
intention of absconding, he could have done so initially
after the alleged murder of his wife. There was no need
c
for him to come back to England. Having come back, he
need not have gone directly to the house of his in-laws.
Not only did he come back to England, he carried with
him the red suitcase containing some of the deceased's
clothes. According to the prosecution, this suitcase had D
i
~ contained blood stains which had belonged to the
deceased. It is inconceivable that a person having a guilty
mind would have been carrying such an incriminating
article back to the house of his in-laws. He went back to
India apprehending danger from his father-in-law and E
family. This apprehension of danger to his life at the
instance of his father-in-law continued even in India. The
fact that an attempt was made on his life had been duly
recorded by the trial court. The respondent had been
petitioning the police authorities as well as the Home F
Minister and the Prime Minister of India seeking
protection. Evading arrest would certainly be an illegal
act but it does not lead to the only conclusion that the
respondent was hiding due to a guilty conscience. The
respondent did not come out of hiding due to fear as also G
-..;(
to avoid arrest by the police but it certainly cannot be
concluded that he was hiding because of a guilty
conscience. [Paras 51, 52] [1156-C-H; 1157-E]

Matru Alias Girish Chandra v. The State of Uttar Pradesh
(1971) 2 sec 75 - relied on.
H
1118 SUPREME COURT REPORTS [2011] 1 S.C.R.

A 9. At the trial, the prosecution did not produce any
evidence with regard to the recovery of any weapon of
offence. Nor any weapon was produced in court, at the·
trial. Even according to the sequence given by the
prosecution, it would have been impossible for the
B respondent to procure the surgical instruments in the city
of Brussels during the night intervening 27th/28th May,
1979. It is a matter of record that the entire group of
tourists did not return back to the hotel till after 11 O' clock
during the tour "Brussels by Night". The deceased was
c with him throughout the tour. The respondent could not
have carried the surgical instruments with him without
the same being noticed at the customs barriers. This
apart, prosecution miserably failed to establish that the
respondent had any intention of committing the murder
of his wife at the commencement of the honeymoon trip.
0
Even the deceased's parents did not entertain any such
apprehensions. It was also the prosecution case that
something went amiss in room no. 415 during the night
of 27th/28th May, 1979. Therefore, it made the
possession of surgical instruments by the respondent on
E the fateful night in Brussels virtually impossible. Such
severance of the body parts could also not possibly be
achieved by use of a simple butter knife. It is simply too
farfetched a notion to be taken seriously. The
conclusions reached by the High Court would clearly
F show that the prosecution had miserably failed to
connect the respondent with the alleged murder of his
wife. The conclusions recorded by the High Court were
fully justified by the evidence on record. [Paras 53, 54)
[1157-F-H; 1158-A-H]
G
Case Law Reference:
1952 SCR 1091 relied on Para 20
(1974) 3 sec 668 · relied on Para 20
H
STATE THROUGH C.B.L v. MAHENDER SINGH 1119
DAHIYA

1993 Supp (3) sec 681 relied on Para 23 A
1994 Supp (3) sec 367 relied on Para 23
1989 Supp (1) sec 91 relied on Para 23
1995 Supp (1) sec 80 relied on Para 23
B
(1971) 2 sec 75 relied on Para 51

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1360 of 2003.

From the Judgment & Order dated 19.12.2002 of the High C
Court of Delhi at New Delhi in Criminal Appeal No. 169 of
1999.

P.P. Malhotra, ASG, P.K. Dey, Chetan Chawla, Madhurima
Mridul, Shweta Verma, Arvind Kumar Sharma for the Appellant. D

Siddharth Aggarwal {for Nikhil Nayyar) forthe Respondent.

The Judgment of the Court was delivered by

SURINDER SINGH NIJJAR, J. 1. This appeal is directed E
against the final order of the High Court of Delhi dated 19th
December, 2002 passed in Criminal Appeal No. 169 of 1999,
whereby the accused Dr. Mahender Singh Dahiya has been
acquitted of the charges under Sections 302 and 201, Indian
Penal Code {for short 'IPC') by setting aside the judgment of F
) the trial court whereby he had been convicted under Sections
302 and 201 IPC and sentenced to imprisonment for life and
fine of Rs.5,000/-.for the offence under Section 302 IPC and
-'
. also imprisonment for seven years and fine of Rs.5,000/- for
offence under Section 201 IPC.
G
2. Before the trial court, the prosecution had succeeded
in proving
. that Dr. Mahender Singh Dahiya·(hereinafter referred
.
to as 'the respondent') had committed the murder of his wife
Namita, a British national of Indian origin, on the intervening
H
1120 SUPREME COURT REPORTS (2011] 1 S.C.R.

A night of 27th/28th May, 1979. The murder was allegedly
committed on the very first night of the honeymoon in room No.
415, Hotel Arenberg, Brussels, Belgium. It is further the case
of the prosecution that after committing the murder, the
respondent had dismembered and extensively mutilated the
B body of the victim. He subsequently disposed of the body parts
at different places in the city of Brussels. This was done with
the intention of destroying the evidence of the murder.

3. The aforesaid conviction and sentence were challenged
before the Delhi High Court by way of an appeal. The High
C Court upon re-appraisal of the entire evidence accepted the
appeal and acquitted the respondent of both the charges.
Aggrieved by the aforesaid judgment of the High Court, the
State through CBI, New Delhi is in appeal before this Court.

D 4. The High Court notices at the very outset of the
impugned judgment that this is an unusual case and perhaps
the first of its kind. We are of the opinion that the High Court
had good reasons for making such a statement. The peculiarity
which makes this murder case rather rare is not only the ghastly
E and the brutal manner in which the offence is alleged to have
been committed but also the complexities created by a number
of unique factors. The accused respondent herein is an Indian.
He is an Orthopedic Surgeon. The alleged victim of the crime
Namita, though of Indian origin was a British citizen. She had r
F grown up in England since she was 5 or 6 years old. The offence
was allegedly committed in a third country, i.e., Belgium.
Consequently, the investigation of the case was conducted in
three different countries. Initially, the Belgium authorities
investigated the crime. Thereafter, the Scotland Yard in London
G also participated in the investigation. It was concluded in India.
The investigation in Belgium and U.K. had been conducted
according to the law and procedure of those countries. This led
to its own difficulties. Initially, the Belgium authorities had
requested for extradition of the respondent for his trial in
Belgium. Later, the request was abandoned by the Belgium
H
STATE THROUGH C.B.I. v. MAHENDER SINGH 1121
DAHIYA [SURINDER SINGH NIJJAR, J.]

authorities. The case was ultimately investigated by the CBI aryd A
the charge sheet was presented on 30th July, 1985. At the trial,
-> a large number of witnesses being foreign nationals were
...,..
examined on commission eith!3r in Belgium or in England. This
further complicated the issues. Ultimately, the trial court
convicted the respondent on 1st March, 1999, i.e,, twenty years- B
after the alleged commission of the crime.
... 5. We may now notice some of the undisputed facts, which
- ~
l are necessary for appreciation of a peculiar situation in which
the alleged offence is said to. have been committed. The
respondent belongs to a village called Turkpur, 'District Sonepat,
c
Haryana. He obtained, his MBBS degree from Punjab
University, Rohtak in 1973 and M.S. Degree in (Orthopedic)
from A.1.1.M.S., New Delhi in December, 1978. He got himself
registered with the Punjab Medical Council.
D
.. ··~ 6. Jagdish Singh Lochab (PW-48) a native of Punjab had
migrated to England in 1962. He was settled there with his
family viz. wife Smt. Chandermukhi (PWUK-1), three daughters
riamely Namita, Arnita Lochab (PWUK-2) and sfuela (PWUK-
3) and two sons. Namita born in India in May, 1956 had E
acquired British citizenship. During 1978, Namita was working
as accounts trainee with the British Broadcasting Corporation
..... (BBC), London. In July-August, 1978, Jagdish Singh Lochab
• ·· (PW-48) visited India to find suitable boy for marriage with his
daughter Namita. They found the respondent to be a suitable F
match for their daughter. After making the selection of the
proposed groom, Namita was called from London. The
engagement ceremony was held between the respondent and
Namita on 31st August, 1978 at village Turkpur followed by a
marriage ceremony according to Hindu rites and customs at
G
~ Delhi on 5th September, 1978. However, as per the
understanding of the parents of Namita, the said marriage was
to be treated as engagement only as there would have to be a
registered marriage in London subsequently. Therefore, the
marriage was not consummated and Namita along with her
H
1122 SUPREME COURT REPORTS [2011] 1 S.C.R.

A parents returned to London on the night of 5th September,
1978. .... ""
7. As arranged, the respondent reached London on 27th ....
February, 1979. He started living with his in-laws at 22, Friars
Way, Action, W3, London. At the same time, he pursued his
B
medical studies. He got himself registered as a post graduate
student at Royal National Institute of Orthopedics, London on
12th March, 1979. Jagdish Singh Lochab (PW-48) purchased
a house (No. 312, Horn Lane Act, London) in the joint name of
Naniita and respondent valued 20,000 UK Pounds. He paid
c 10,000 UK Pounds, the remaining price was to be paid in
installments. A joint bank account No.91053728 was also
opened in the name of Namita and the respondent at Midland
Bank, Acton High Street, London and two cheque books, one
each in the name of Namita and the respondent were issued
D by the bank.
-r- .
8. On 5th or 6th April, 1979, 18th birthday party of Sheila,
younger sister of Namita was celebrated where all the friends
(boys & girls) of the three daughters of PW-48 including UK-
E 23 Philips David Abbey, a colleague of Namita were invited in
the party. Mr. and Mrs. Lochab left the house at about 7.30 pm
and returned at about 1.30 a.m. in the morning. On their return
the accused started abusing the whole family, he was
aggressive and alleged Namita to be characterless, as she had
F been dancing and mixing with boys. Namita was upset with the,-
behaviour of the accused and was crying. She told her mother
that it did not seem possible for her to spend the rest of her
life with the accused. The next morning the whole family sat
together along with the accused and discussed about the
incident of the previous night. When the accused was told that
G
Namita wants to cancel the engagement,;he apologized for'his ~
conduct in the previous night. During the night of 10th
April,1979 at 1.30 a.m. Namita wrote a letter (exhibit CW-13,
Volume-9, page 286) to the accused addressing him as
MahenCfra, suggesting that wedding should be cancelled in the
H
STATE THROUGH C.B.I. v. MAHENDER SINGH 1123
DAHIYA [SURINDER SINGH NIJJAR, J.]

"1 month of May, until both of them were ready for the same. She A
' advised him to get some self confidence to prove himself
responsible enough to look after a wife and a home. In reply,
the accused wrote a letter, to Namita addressing her as Nita,
which is exhibit CW-14 (Vol.9, page 290).
B
9. On 26th May. 1979, the marriage between Mahender
and Namita was registered at. the Office of the Registrar of
Marriages, London. It was followed by a reception the same
evening at the Phoenix Restaurant, London. A honeymoon trip
for the newly wedded couple was arranged for five days C
commencing from 27th May, 1979 to certain European
countries through Cosmos Tours, London. In the morning of
27th May, 1979, Mahender and Namita left for the honeymoon
trip. They were seen off by her family at Victoria Railway Station,
London. They carried two suit cases, one of red colour
belonging to Namita and the·other of brown colour belonging D
to Mahender containing their clothes and other articles. The
group of tourists including Namita and the respondent reached
Brussels at about 6.30 p.m. the same evening. All the tourists
in the group stayed at the fourth floor of Hotel Arenberg,
Brussels. Mahender and Namita checked into room no. 415. E
After some time they went for a short sight seeing tour 'Brussels
by Night'. They returned to the hotel at about 11.00 p.m. and
retired to their room.
I

10. Hereafter, there are two versions, one according to the F
appellant and another according to the respondent. The
prosecution version is that the respondent had strangled his
wife Namita to death in their hotel room. He had then proceeded
to dismember and mutilate parts of her body which were
subsequently disposed of in the rubbish container and the lake. G
The respondent entered UK on the same day, i.e., 29th May,
1979 and withdrew an amount of 200 UK Pounds from the joint
account he had with his.wife bearing Account No. 91053728
from the Midland. Bank, London. In the afternoon of 30th May,
1979, afterwithdrawing the money from the bank, he went to H
1124 SUPREME COURT REPORTS [2011] 1 S.C.R.

A the house of his in-laws. He was carrying two suitcases. He,
however, could not give any satisfactory explanation to his in-
laws about the whereabouts of his wife Namita. He rather falsely
stated to them that she had abandoned him at Brussels on the
morning of 28th May, 1979, carrying away her clothes and
B money. The respondent wanted to get away from the house as
soon as possible without giving any explanation as to what
happened in Brussels. He was, however, restrained by the
family members with the assistance of a neighbour. Thereafter,
Namita's father Jagdish Singh Lochab (PW-48) took the
c respondent to Acton police station to lodge a missing person's
report about the disappearance of Namita. On the way back
from the police station along with his father-in-law, the
. respondent escaped by jumping onto a running bus. Thereafter,
he stayed in the YMCA, London without disclosing his identity/
D particulars. He left for India via Frankfurt, West Germany and
reached Delhi on 6th June, 1979. He afterwards, remained
underground and absconding and could not be traced in spite
of various efforts until 9th May, 1983. He was hiding in a village
in District Lalitpur, U.P., where he_had taken up the practice of
E general medicine under the fake name of Dr. M. Singh.
11. We have heard the learned counsel for the parties.
Very elaborate submissions have been made by Mr. P.P.
Malhotra, learned Additional Solicitor General for the appellants
and Mr. Siddharth Aggarwal for the respondent.
F
12. Mr. Malhotra has submitted on behalf of the appellant
that the High Court has committed a .grave error in reversing
the well reasoned judgment recorded by the trial court. He further
submits that the trial court had meticulously examined the entire
sequence of events. The evidence of the witnesses relating to
G various facts and circumstances was discussed under various
heads In order to see if the chain of circumstances for bringing
home guilt for offences with which the accused had. been
charged was complete or not. The t_rial court discussed the facts
H
1126 SUPREME COURT REPORTS [2011) 1 S.C.R.

A Namita; his explanation given to the parents of
Namita regarding Namita's disappearance from _... ~

Belgium; his conduct at the time accompanying '
father of Namita to Acton P.S. to report about "'
Namita's disappearance and his alleged escape
B by jumping into a runnjng bus; and if these
circumstances are qf any effect ?

G. Recovery of parts of human body on the morning
of 29.5.79 and subsequent recovery of torso from -... --..
the lake on 2.8. 79.
c
H. Collection of evidence pertaining to the crime from
room No. 415 of Hotel Arenberg, Brussels and
reports of the forensic tests connecting the recovery
of the murder.
D
I. Report of the post mortem in respect of the parts
of the human body recovered on 29.5. 79 and other f '
evii:tence showing that the dismembered parts
' ...
were that of Namjta. '

E J. .f;vidence connecting the torso to .be of Namita.

K. · .Evidence collected from. th.e' suitcase allegedly
lt_rought by the accused to Londoh establishing that
the. blood in th~ suitcase was of Namita.
F .. •
L. .Other evidence in the form of recovery of clothes
find shoes of Namita along with dismembered
·human body.
'
M. Absconding of the accused and the efforts made
:G· by the police in apprehending him vis-a-vis
,.+.-
explanatioh given by the accused in that regard.

N. Reference received from Belgium Government for
extradition of the accused and subseque_nt
abandonment of the request and sanction granted
H
STATE THROUGH C.B.I. v. MAHENDER SINGH 1127
DAHIYA [SURINDER SINGH NIJJAR, J.]
by Central Government for prosecution of the A
accused in India.

0. Other facts referred to on behalf of the accused
breaking the chain in Circumstantial evidence."

13. The learned Additional Solicitor General then drew our B
attention to the findings of the trial court on each point. He drew
our particular attention to Point 'C' relating to the resentment
of the respondent to the friendly behaviour of Namita towards
·the other men in particular PWUK-23 at the birthday party.
These facts, according to Mr. Malhotra, were found to be C
proved by the trial court which provided strong motive to the
respondent for committing the murder of his wife. According to
Mr. Malhotra, this finding has been wrongly reversed by the High
Court. Point 'D' related to the behaviour of respondent and his
wife Namita in the coach. Mr. Malhotra laid special emphasis o
on Point 'E' which related to the respondent's behaviour as
observed by PWUK-12, PWBG-22, and PWBG-24. He
submitted that the trial court had elaborately considered the
evidence of these witnesses and rightly concluded that the
respondent had murdered his wife by strangulation and E
thereafter he had mutilated her body by disjointing the limbs
from the joints. The conclusion of the High Court, according to
him, is improbable.

14. In summing up Mr. Malhotra submitted that there is
conclusive evidence to prove that it was the respondent who F
committed the murder of his wife. Having committed the murder
he discarded the body parts as narrated above. Mr. Malhotra
had placed strong reliance on the cumulative effect of the
circumstances established on the record. He relied on the . '
following facts: - G

(1) Namita was last seen alive in the company of the
·respondent on the night intervening 27/28th
May,1979.
H
1128 SUPREME COURT REPORTS [2011] 1 S.C.R.

A (2) The respondent floated the false defence about the
Namita having left him in the morning of 28th May,
~ ~
1979.

(3) He did not make any complaint to the Belgium
Police.
B
(4) He did not inform either the tour guide or any staff
member of the hotel about his wife having voluntarily
left.

c (5) He made no efforts to trace his wife for two days.

(6) He deliberately stayed in the hotel on 28th and left
for U.K. on the 29th May, 1979. At the same time
the body parts were discovered in the rubbish
container which is only two hundred meters away
D from the hotel.
(
~
(7) The body parts recovered from the rubbish bin have
been identified to be those of Namita by reliable
expert evidence.
E (8) The cloth recovered in the rubbish bin had been
identified to be those of Namita.

(9) The blood group of the body stains found in the
bathroom matches the blood group of Namita.
F
(10) The palm prints of the palm recovered from the
rubbish bin match the palm print of Namita.

(11) The torso recovered has been identified to be that
of Namita from Vergote lake which is only
G seventeen minutes walking from the hotel. _..._

(12) Therefore, there is scientific evidence to establish
the identity of the victim to· be that of Namita.

H
STATE THROUGH C.B.I. v. MAHENDER SINGH 1129
DAHIYA [SURINDER SINGH NIJJAR, J.]
( 13) He ran away from the father of the deceased at the A
., ~ -first opportunity that he got.

(14) He remained absconding and hiding for a period
of four years till he was discovered.

15. On the basis of the aforesaid, learned Additional B
Solicitor General submitted that the judgment of the High Court
deserves to be set aside and judgment of the trial court ought
to be restored.

16. Mr. Aggarwal, on the other hand submitted that - c
(i) The prosecution has miserably failed to establish
any motive for the alleged crime.· There is no
material even to indicate what weapon was used
·by the respond en~ in the commission of the crime.
0
He emphasised that no weapon of offence was
either recovered or produced during the trial.

· (ii) The prosecution case is based only on hypothesis.
First such hypothesis is based on the opinion of the
doctor, who conducted the postmortem E
examination. This doctor had stated that it was
evident that the dismemberment of the body parts
~- of the victim was committed by a professional
doctor or a butcher, who knows the anatomy of the
human body. This could be done with the aid of F
certain surgical instruments which could have been
carried by the respondent with him as he was an
Orthopedic Surgeon.

(Iii) The other possibility 'floated on behalf of the G
prosecution was that as the body parts had been
simply disjointed at the various joints, it could be
done by using a fork and a butter knife, which would
be available to the respondent in the hotel room.

(iv) Mr. Aggarwal had pointed out that it would have H
1130 SUPREME COURT REPORTS [2011) 1 S.C.R.

A been virtu;:illy impossible for the respondent to have
carried surgical instruments with him through A. ..
international borders without the same coming to the
notice of the customs authorities. Giving the
sequence of events, as projected by the
B prosecution, it would have been impossible for the
respondent to have procured the surgical
instruments within the city of Brussels.

(v) Learned counsel had also pointed out the +- ..
impossibility of mutilation of the body simply by
c using a butter knife and a fork.

(vi) Mr. Aggarwal had next pointed out that if the
murder had been committed during the intervening
night of 27th/28th May, 1979 in room no. 415, i.e.,
D fourth floor of the hotel, where many other guests
of the tour group were staying, at-least, someone
or the other of the guests s~ould have heard the
screams of the victim. The dismemberment of the
body must have caused some tangible noise which
E could easily have been heard by any passer by.

(vii) He had next submitted that the prosecution has not
given any clear version as to how the body parts
were removed from the hotel to the different
locations where they were discovered. The
F prosecution has failed to produce any material
objects to demonstrate how the body parts were
shifted from the hote,Lroom to the rubbish container.
The prosecution had suggested that the body parts
had been removed in the red suitcase (Ex.CW/26).
G
(viii) Mr. Aggarwal had pointed out· that not a single
...
witness was produced by the prosecution who
might have seen the respondent carrying the red
suitcase from the hotel to the container lying at a
H
STArE THROUGH C.B.I. v. MAHENDER SINGH 1131
. DAHIYA [SURINDER SINGH NIJJAR, J.]
. distance of about two hundred meters from the hotel A
... ~
or to Vergote canal/lake.

(ix) · Even otherwise, he had pointed out that the body
parts would not have fitted in the suit case. The
length of the suitcase was measured 67.5 ems.
B
while the torso measured 69 ems. He had also
pointed out that the torso was recovered more than
~
two months after the incident which would indicate
+ that it was thrown into the lake by someone much
laterthan 28th May, 1979 or a few days prior to 2nd
August, 1979. If the torso had been thrown in the c
lake on or around 28th May, 1979, it could not have
remained submerged for two months and would
have appeared on the water surface within a few
days of its disposal.
D
(x) It was further pointed out by Mr. Aggarwal that other
parts of the body remained untraced even till the
time of trial.
· (xi) With regard to the respondent's return to England,
the learned counsel had pointed out that if the E
intention of the respondent was to escape, he
would not have drawn only 200 pounds from the
~ joint account, which in fact had a balance of over
800 pounds. The amount withdrawn by the
respondent would not have been sufficient even to F
buy a ticket back to India. He had pointed out that
Namita's air ticket from London to Delhi (Ex.CW/
3) had been purchased for 350 pounds.

(xii) Learned counsel then pointed out that the G
~· prosecution theory about the respondent's return to
his in-laws' home to collect his certificates is quite
implausible in as much as duplicate certificates are
easily available (and were in fact obtained by ~he
respondent). H
1132 SUPREME COURT REPORTS [2011] 1 S.C.R.

A (xiii) Making a reference to the material on the record,
the counsel had pointed out that the certificates
were in fact not found inside the respondent's
suitcase at all in the inventory of the contents of
~- -
suitcases drawn up in Belgium.
B ·(xiv) It was the case of the defence that even according
to the parents of Namita, respondent had returned
to their home to pick up his belongings. This,
according to the learned couns.el, would not be the -+
rationale behaviour of a guilty individual, who would
c not have risked returning to their house for the sake
of his clothes. In fact according to Mr. Aggarwal,
respondent had no need for any clothes. He had a
suitcase full of clothes with him in Belgium. He in
fact returned to his in-laws home for discussion/
D confrontation with the parents of Namita and to
decide his future course of action. .,.
(xv) On his return, he found the behaviour of his mother
in law very hostile. This is clear from the evidence
of PWUK-2 which indicates that the family tried to
E
search him. He was in the house for more than three
hours having arrived at 2 p.m. The missing persons
report lodged by PW-48 is timed at 5.30 p.m.
+.

(xvi) The respondent had no intention according to Mr.
F Aggarwal, to escape. He submits that the entire •
incident within the in-laws' house has been
fabricated to suit the prosecution version, which is
belied by the inconsistencies in the narration of
events by the family members. He made references
G to relevant portions of the statement recorded by
PWUK-1, PWUK-2, PWUK-3 (on commission) and
PW-48, in the trial court. Similarly, according to Mr.
Aggarwal, the prosecution version is belied by the
conduct of the respondent at the Acton Police
H Station where the missing person's report was
STATE THROUGH C.B.I. v. MAHENDER SINGH 1133
DAHIYA [SURINDER SINGH NIJJAR, J.]

lodged. The respondent had duly informed the A
police officer of the fact that Namita had walked out
on him at 6.00 a.m. on 28th May, 1979. On this
basis, the missing person's report was lodged by
PW-48. The respondent's explanation regarding the
circumstances in which Namita left him was made B
.known to PWUK-17, Nicolas Linfoot, Sergeant
·Officer, Police Station, Acton. He had also given the
evidence on commission which was available at the
trial. In his statement on commission, PWUK-17
disclosed that the respondent was nervous and c
agitated during the interview. He specifically
returned to the police station after they had walked
out of the station to complain that he felt threatened
by his in-laws and expecting trouble from them.

(xvii) Mr. Aggarwal then pointed out various events to D
show that the respondent was never intending to
either hide or abscond. Undoubtedly on 28th May,
1979, he jumped on a running bus to get away from
his father-in-law as he was apprehensive of an
altercation with him. It is also pointed out by Mr. E
Aggarwal that respondent had already informed
PW-48 that he would prefer to stay at the YMCA,
where he actually stayed till 30th May, 1979. If the
respondent had a guilt conscience and wanted to
abscond, there was no reason to return to England. F
· He could have let to a safe place directly from
Belgium.

(xviii) With regard to the letter written to the Prime
Minister, he points out that these letters and G
telegrams to authorities were sent as he
apprehended threat to his life and false
implications. He, therefore, sought protection of the
authorities. Respondent had even produced
witnesses from the village where he was practicing
H1
1134 SUPREME COURT REPORTS [2011) 1 S.C.R.

A medicine, who stated that he had clearly disclosed
his full name. He stayed in the village Bansi for
three-four years.

(xix) Mr. Aggarwal, therefore, submits that the appellant
did not want to reside at Turkpur to avoid the social
B
stigma. He feared of retribution and false
implication. His fears were not without any basis.
The trial court record shows that on 14th October,
1992, two years after his second marriage, an
attempt was made on his life while he was in his
c clinic at Kharkhoda.

(xx) Mr. Aggarwal then pointed out that while recording
evidence on commission, the Belgium authorities
did not comply with the provisions of the Criminal
0 Procedure Code (Cr.P.C.), 1973 and the 1ndian
Evidence Act, 1872. This was in spite of the specific
directions given by the trial court to both the parties
to carry the relevant provisions of law with them to
ensure compliance with the Indian law. In fact the
E requisition for commission sent to· the Belgium
Court specifically requested that the procedure
prescribed under Sections 135-159 of the Indian
Evidence Act and that of Section 162 of Cr.P.C. be
followed.
F 17. Learned counsel also pointed out to numerous
inconsistencies and contradictions in the evidence of the
prosecution witnesses and submitted that the High Court has
rightly concluded that the prosecution has failed to establish the
guilt of the respondent beyond reasonable doubt.
G
18. We have examined the submissions made by the
learned counsel for the parties, particularly keeping in view the
gruesome nature of the crime and the complexities presented
in the investigation, as also at the trial of this particular case.
H
STATE THROUGH C.8.1. v. MAHENDER SINGH 1135
DAHIYA [SURINDER SINGH NIJJAR, J.]

19. Undoubtedly, this case demonstrates the actions of a A
.....+. depraved soul. The manner in which the crime has been
committed in this case, demonstrates the depths to which the
human spiriVsoul can sink. But no matter how diabolical the
crime, the burden remains on the prosecution to prove the guilt
of the accused. Given the tendency of human beings to become B
emotional and subjective when faced with crimes of depravity,
the Courts have to be extra cautious not to be swayed by strong
sentiments of repulsion and disgust. It is in such cases that the
+ Court has to be on its guard and to ensure that the conclusion
reached by it are not influenced by emotion, but are based on c
the evidence produced in the Court. Suspicion no matter how
strong can not, and should not be permitted to, take the place
of proof. Therefore, in such cases, the Courts are to ensure a
cautious and balanced appraisal of the intrinsic value of the
evidence produced in Court.
D
'1 20. In our opinion, the High Court has examined the entire
evidence dispassionately and with circumspection. It has
noticed that the evidence produced by the prosecution in this
case is purely circumstantial. The principles on which the
circumstantial evidence is to be evaluated have been stated E
and reiterated by this Court in numerous judgments. We may
notice here the observations made by this Court, in the case
of Hanumant Govind Nargundkar Vs. State of M.P. 1 on the
manner in which circumstantial evidence needs to be evaluated.
In the aforesaid judgment, Mahajan, J. speaking for the Court F
stated the principle which reads thus:-

"It is well to remember that in cases where the evidence
is of a circumstantial nature, the circumstances from which
the conclusion of guilt is to be drawn should in the first
G
1 instance be fully established, and all the facts so
established should be consistent only with the hypothesis
of the guilt of the accused. Again, the circumstances should
be of a conclusive nature and tendency and they should

1. 1952 SCR 1091. H
1136 SUPREME COURT REPORTS [2011] 1 S.C.R. <'

A be such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a
chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to show
-"
-
B that within all human probability the act must have been
done by the accused."
,_
The aforesaid proposition of law was restated in the case of ',
Naseem Ahmed Vs. Delhi Admn2, by Chandrachud J. as -+
follows:
c
"This is a case of circumstantial evidence and it is
therefore necessary to find whether the circumstances on
which prosecution relies are capable of supporting the sole
inference that the appellant is guilty of the crime of which
0 he is charged. The circumstances, in the first place, have
to be established by the prosecution by clear and cogent ,,.
evidence 2nd those circumstances must not be consistent
with the innocence of the accused. For determining whether
the circumstances established on the evidence raise but
E one inference consistent with the guilt of the accused,
regard must be had to the totality of the circumstances.
Individual circumstances considered in isolation and
divorced from the context of the over-all picture emerging -4
from a consideration of the diverse circumstances and their
F conjoint effect may by themselves appear innocuous. It is
only when the various circumstances are considered
conjointly that it becomes possible to understand and
appreciate their true effect."

21. We are of the opinion that the High Court was fully alive
G to the aforesaid principles and has assessed the evidence in

-
the correct perspective. Upon consideration of the factual and
the legal position, the High Court summed up the final
conclusion. We are unable to accept the submission of Mr.

H 2. (1974) 3 sec 668.
STATE THROUGH C.B.I. v. MAHENDER SINGH . 1137
DAHIYA [SURINDER SINGH NIJJAR, J.]

Malhotra that the conclusions reached by the High Court are A
not plausible conclusions. Thereafter, the High Court
systematically and chronologically examined the series of
incidents/circumstances relied upon by the prosecution to
.establish the guilt of the respondent.
B
22. It would be appropriate to discuss these incidents/
circumstances under different headings.

· + Motive

23. Upon consideration of the evidenceon record, the High C
Court concluded as follows:-

"Bearing in mind the legal position emerging out of the said
authorities and having regard to the totality of the facts and
circumstances which can be said to have been established
on record, it is not possible to infer any motive on the part D
of the appellant what to talk of a motive so strong to
commit the crime."

In assessing the evidence, the High Court was aware of the
legal principles that absence of motive may not necessarily be E
fatal to the prosecution. Where the case of the prosecution has
been proved beyond reasonable doubt on the basis of the
material produced before the Court, the motive loses its
+
significance. But in cases based on circumstantial evidence,
motive for committing the crime assumes great importance. In F
such circumstances, absence of motive would put the Court on
its guard to scrutinize the evidence very closely to ensure that
suspicion, emotion or conjecture do not take the place of proof
(See Surinder Pal Jain Vs. Delhi Administration 3 and
Tarseem Kumar Vs. Delhi Administration4 }. G

We may also notice here the observations in Subedar

3. 1993 supp (3) sec 681.
4. 1994 supp (3) sec 367.
H
1138 SUPREME COURT REPORTS [2011] 1 S.C.R.

A Tewari Vs. State of U. P. 5 wherein it has been observed that -

"The evidence regarding existence of motive which
operates in the mind of an assassin is very often than (sic)
not within the reach of others. The motive may not even
be known to the victim of the crime. The motive may be
B
known to the assassin and no one else may know what
gave birth to the evil thought in the mind of the assassin."

Again reiterating the role played by motive in deciding as to + .
whether the prosecution has proved the case beyond
C reasonable doubt against an accused, this Court in the case
of Suresh Chandra Bahari Vs. State of Bihar held as under:-

"Som.~times motive plays an important role and become
a compelling force to commit a crime and therefore motive
D behind the crime is a relevant factor for which evidence
may be adduced. A motive is something which prompts a
person to form an opinion or intention to do certain illegal
act or even a legal act with illegal means with a view to
achieve that intention. In a case where there is motive, it
affords added support to the finding of the Court that the
E
accused was guilty for the offence charged with. But the
evidence bearing on the guilt of the accused nonetheless
becomes untrustworthy or unreliable because most often
it is only the perpetrator of the crime alone who knows as
to what circumstances prompted him to adopt a certain
F course of action leading to the commission of the crime."

In our opinion, the conclusion recorded by the High Court is in
accordance with the aforesaid principles. Merely because the
respondent objected to the behaviour of Namita towards her
G male friends at the birthday party of her sister Shiela would not
be sufficient to hold that the appellant had the necessary motive
to kill her. It is inconceivable that the respondent would have

5. 1989 Supp (1) sec 91.
H 6. 1995 Supp (1) sec 80.
- STATE THROUGH C.8.1. v. MAHENDER SINGH
DAHIYA [SURINDER SINGH NIJJAR, J.]

married Namita only for the purpose of committing her murder,
1139

A
+ that too on the very first night of their honeymoon. Both the trial
court and the High Court, in our opinion, have correctly recorded
the conclusion that it was in fact in the interest of the respondent
that Namita had remained alive. The success of his very
objective to remain permanently in England was dependent on B
the continuance of his marriage for at least another year.

24. We are also not much impressed by the submission
~
of Mr. Malhotra that the simmering resentment which was
caused by Namita's refusal to consummate the marriage would
be sufficient to impel the respondent to commit her murder. In c
our opinion, the High Court has correctly concluded that the two
letters Ext.CW-13 and Ex.CW-14 exchanged between Namita
and Mahender would tend to show that respondent was in fact
trying to make amends after the birthday party on 5th /6th April,
D;
.,. '1
1979. There was no untoward incident thereafter. It is accepted
by all that the marriage was duly registered on 26th May, 1979
and that the couple voluntarily left for the honeymoon.

25. The trial court upon examination of the entire evidence
had in fact concluded that something had gone amiss in the E
hotel room occupied by Mahender and Namita on the night of
27th/28th May, 1979. If that be so, the High Court rightly
-'-" concludes, that this fact alone would contradict the theory of
respondent having any pre-meditated strategy or design for
committing the murder of his wife. The High Court correctly
F
concluded that "it is highly improbable to comprehend that
respondent had a predetermined mind or motive to cause1.the
death of Namita on the honeymoon night itself at the first
available opportunity of being in the company of the deceased
in a closed room as suggested by the prosecution. Had the
1 attitude of the parties been as suggested by the prosecution, G
they would not have agreed to a marriage followed by a
honeymoon trip outside London." The High Court also noticed
that there was nothing to suggest that Namita or her family

H
1140 SUPREME COURT REPORTS [2011) 1 S.C.R.

A members had apprehended any harm or threat to life of Namita
at any stage till the couple left for the honeymoon on morning
+ '
of 27th May, 1979. The High Court found it impossible to
accept the prosecution theory that the respondent hc;id married
the deceased only with a view to do way with her to take
B revenge for her appalling behaviour at Shiela's birthday party.
Had the respondent been so resentful, there was no question
of the marriage being solemanised.

LAST SEEN CIRCUMSTANCE/EVIDENCE· + '
C 26. On this issue, the High Court has merely recorded that
the respondent has not disputed that Namita was with him in
the room throughout the night. This position is also maintained
by Mr. Aggarwal before us. The respondent had, however,
claimed that Namita had left him at 6.35 a.m., in the morning
o of 28th May, 1979. The High Court upon examination of the
evidence of the Manager of the Hotel concluded that it was not
possible to hold that Namita was seen alive by anyone in the
morning of 28th May, 1979. The High Court, therefore,
observed that it was for the respondent to explain about her
E disappearance.

27. The explanation given by the respondent consistently
from the beginning is that Namita had left him voluntarily early
in the morning of 28th May, 1979. It is also his case that she
married him only under pressure from her parents. She had
F purchased a new suitcase in which she packed most of her
clothes immediately upon returned from the "Brussels by Night"
tour. The red suitcase with which she had traveled from London
to Belgium was left with the respondent containing some of her
clothes. This suitcase even though had a blood stain was
G carried back to the house of Namita's parents by the
respondent himself. It seems inconceivable that a person who
has committed the murder of his wife and has used the
aforesaid suit case for storing and carrying the body parts would
bring it back to England risking his own safety. The respondent
H also narrated before the police that his wife had left him
STATE THROUGH C.B.I. v. MAHENDER SINGH 1141
DAHIYA [SURINDER SINGH NIJJAR, J.]

voluntarily on the morning of 28th May, 1979. This fact was A
. -lo-
further reiterated by him in the letter to the Prime Minister of
lndiawhich runs as follows :-

• .....After seeing these historical places we reached to our
room. We took our bath and she gave me half currency B
my passport and ticket to me. She asked· me to go out for
a while and then came with new suitcase. She
accommodated the maximum articles possible in that and
left the rest in the suitcase which she took with her from
her house. Then she told me that dear Mahendra I want to
tell you something very important and that is "I have married
c
you just for the sake of my parents for which they were
. pressing me. Now I will think about my future and you also
should think about your own future. Do not object me. for
anything" saying this she went out and asked me n,ot to
follow her. I waited till morning when the Cosmos Coach D
guide came to room and asked to get re~dy for the further
tour but I told him that I am waiting for my wife because
she has gone out."
-
28. In our opinion, the last seen evidence would not E
necessarily mean that the respondent had killed his wife. Given
the previous attitude of Namita, it is quite possible that she had
walked out on her husband.

EVENTS ON THE MORNING OF 28th May. 1979 •
F
29. The most important circumstance relied upon by the
prosecution relates to the state of affairs which existed in Room
No.415 of Hotel Arenberg and the behaviour pattern exhibited
by the respondent on the morning of 28th May, 1979. This was
sought to be proved by the evidence given by three witnesses, G
i namely, PWUK-12 Richard Anthony Cushnie, PWBG-22
Mujinga Maudi and PWBG-24 - Benselin Myriam. The High
Court notices that the prosecution had sought to project through
. these witnesses a certain state of affairs to prove that the
respondent had a guilty mind. H
A
1142 SUPREME COURT REPORTS (2011] 1 S.C.R.

30. The High Court rejected the evidence of the tour guide
-
(PWUL-12) as being inconsistent. The High Court notices that
this witness had gone up to room no.415 to inform the couple
-4 .
that the tour party was ready to leave. He knocked on the door.
It was half opened by the respondent. He found the respondent
B was perspiring but at the same time assumed his behaviour
to be quite normal or non exceptional. The High Court also
notices that this witness had prepared two reports Ext.CW42/
A and CW42/B after the termination of the tour. None of the
two reports make any mention about the abnormal behaviour +
c of the respondent. These reports rather indicate that the
witnesses must have been in a hurry when they visited room
no.415 and could not have talked to the respondent for more
than a couple of minutes. In fact, in one of the reports, this
witness mentions the fact that the father-in-law of the respondent
D had told him that Namita had. abandoned the respondent on the
morning of 28th May, 1979. In our opinion, the High Court was
justified in concluding that this statement would support the
defence plea.

31. We may also notice that this witness in his cross
E examination clearly stated that 1979 was his first year as a tour
courier. He accepted that portion of the report (marked 8) was
written by him. The aforesaid portion contained the words "It
could be that the wife left very early and the arranged marriage ·.,;
giving her the opportunity. It is conceivable that the girl left early
F in the morning. The arranged marriage having given her
opportunity to leave home and make a life on her own and
therefore satisfy the desires of both parties." He also stated in
the cross examination that on his visit to room no. 415, he could
not have remained with the respondent much more than 2
G minutes. He goes on to say that "at the time the coach was
waiting, we were anxious to be away. I did not enter the room
at any stage during that period of 2 minutes. I did not try and
peep inside the room." Such being the state of affairs, we are
unable to accept the submission of Mr. Malhotra that the High
H Court wrongly discarded the evidence of this witness.
STATE THROUGH C.B.I. v. MAHENDER SINGH 1143
DAHIYA [SURINDER SINGH NIJJAR, J.]
32. In rejecting the evidence of PWBG-22 Majinga Maudi, A
the High Court noticed that this witness was examined by the
police on a number of occasions, but she could not even give
the correct room number. She actually stated that she visited
room no.410. The High Court also concluded that from her
evidence it becomes apparent that the respondent did not even B
· put a latch on the door nor did he take any extra precaution to
keep the room closed. This witnesswas able to enter the room
without knocking. Mr. Malhotra, however, laid considerable
emphasis on the part of the statement that when she entered
the room she saw the respondent sitting on the bed with hands c
on his face and she thought him to be sick. This witness also
stated that she wanted to open the curtains of the window but
the respondent did not allow her to do so. According to Mr.
Malhotra, this would clearly indicate that the respondent was
deeply distressed and disturbed. Mr. Malhotra also
emphatically reiterated that this witness proved that the D
bathroom was totally soaked with water and there were wet
towels on the floor of the bathroom. When she was cleaning
the room; the respondent did not leave her for a second. The
High Court, however, notices that this witness did not find any
incriminating article like the body or body parts either in the room E
or in the bathroom, nor she found even a trace of blood on the
carpet or on the wall. This witness had herself stated that the
respondent had left the room unattended knowing perfectly well
that this witness could enter the room in his absence. We do'
not accept the submission of Mr. Malhotra that the cause of F
respondent's distress was the murder that he had committed.
It could equally be the distress of a husband whose wife
deserted him on the honeymoon. In our opinion, the High Court
has correctly assessed the evidentiary value of the statement
of this witness. G
i
·, 1 33. The other witness relied upon by the prosecution was
PWBG-24 who wanted to enter the room in order to take the
inventory of the mini bar. He was, however, not permitted to do
so by the respondent. The High Court notices that the earlier H
1144 SUPREME COURT REPORTS [2011) 1 S.C.R.

A witness had actually stated that he had come inside the room
and he had talked to her.

34. From the above, it becomes apparent that it was only
on a very careful consideration of the evidence of all the
witnesses, the High Court concluded that the behaviour of the
8
respondent cannot be said to be consistent only with the guilt
of the respondent. In our opinion, the High Court correctly
notices that no explanation was forth coming as to where the
body or dismembered body parts could have been concealed
C by the respondent throughout the night of 27th/28th May, 1979
as well as the morning and the afternoon of 28th May, 1979.
The High Court notices that it is the case of the prosecution
that the body parts were disposed of after the evening of 28th
May, 1979. The suggestion of the prosecution that the body
might have been kept either in the cupboard or under the bed
D was correctly held to be conjectural.

RECOVERY OF BODY PARTS FROM THE RUBBISH
CONTAINER AND THE IDENTIFICATION THEREOF·

35. The next circumstance relied upon by the prosecution
E to connect .
the respondent with crime is the recovery of body
parts allegedly of Namita viz. head, severed upper and lower
limbs minus thigh portion from a refuge container lying at Rue
De Loxum in the morning of 29th May, 1979 and that of torso
from Vergote Lake, Brussels on 2nd August, 1979. Certain
F pieces of clothings and a shoe were also recovered form the
rubbish container which according to the prosecution had also
belonged to Namita. The body parts were recovered by a rag
picker namely Verbeleen Marcel, PWBG-6. He had been
looking for some lead or copper in the· rubbish container for
G selling. Instead, he found a packet which was wrapped with a
black pullover containing an arm in the shape of a hand without
fingers, two arms cut into four pieces. On seeing such a sight,
he became nervous and called the police. Responding to his
call, two policemen arrived. PWBG-13, Van Eesbeek Pierre,
H
STATE THROUGH C.B.I. v. MAHENDER SINGH 1145
DAHIYA [SURINDER SINGH NIJJAR, J.]

a police officer of Brussels on reaching the site looked into tb~- A
.).. waste container and found a pair of legs and the feet. These
remnants were wrapped in chiffon and inside a plastic bag. The
.other witness of the recovery is PWBG-21, Vindevogel Rene.
He has stated that he had accompanied PWBG-13, Van
EE;lsbeek Pierre. They had found in the container, inside a B
cardboard box, two pieces of arms and on further search found
a red cloth wrapped packet with plastic and when he opened
.+-- it, a head rolled down. According to him, his colleague found
one of the two legs and the feet in other side of the container,
also packed in a red fabric. The High Court, therefore, c
concluded that only one piece of clothing found near the body
parts was a black pullover and some red fabric, which might
have been used for wrapping the body parts. These witnesses
did not speak about the recovery of any other clothing or shoes
as is sought to be proved through PWBG-8 Nelissen Urbain, D
PWBG-14 Etienne Martin, PWBG-25, Lecerf Jacques, PWBG-
""' "" 27 Pissoort Jean and PWBG-28 Dooms Jeanean. It is noticed
by the High Court that none of these witnesses except PWBG-
28 Dooms Jeanean speaks about the recovery of any clothing
or shoe from the site of recovery. In fact PWBG-28 Dooms
Jeanean could not speak with certainty as to what garments E
or shoes were discovered from the container. The High Court
further notices that the details of clothing and shoes do not find
~
mention· in the report of the police dated 30th May, 1979. The
report simply mentions that there were several pieces of ladies'
clothing which were seized and would be described in a special F
report. It appears that no contemporaneous report of recovery
· of these clothings was prepared. The report was subsequently
prepared on 8th June, 1979 in the form of an inventory of items
found on 29th May, 1979. These for the first time specified a
~
pink brown cardigan covering the legs, a black pullover and red G
fabric which are described by the witnesses. The High Court
also notices that the police had already collected and seized
various articles and things from the house of PW-48, Mr.
Lochab in London on 5th June, 1979, 6th June, 1979 and 7th
H
1146 SUPREME COURT REPORTS [2011] 1 S.C.R.

A June, 1979.
--!
36. In our opinion, the High Court has reached the
appropriate conclusion that the possibility of these garments
and articles having been planted by the police by obtaining the
same from the house of Namita with the object of fixing the
B
identity of the body parts belonging to Namita by means of the
clothes can not be ruled out. It is noteworthy that no
contemporaneous recovery memo was prepared by the police
on 29th May, 1979 itself. There was omission of the details of -+
the allegedly recovered clothes in the statement of the
c witnesses. Articles had already been seized from the house
of Namita on three consecutive days 5th, 6th and 7th June,
1979. The Special Report containing the inventory of the
clothes is dated 8th June, 1979. It is in this report that clothes
are mentioned for the first time. We are unable to accept that
D even in the face of such material, the conclusion reached by
the High Court is not plausible. 'r ~

37. We may also notice that prosecution had allegedly
recovered the clothes Namita had taken on the trip. Namita's
'E wedding dress was stated to have been recovered as part of
the clothings. The High Court, in our opinion, correctly observed
that ordinarily a woman would not carry her wedding dress on
her honeymoon trip. The High Court also notices that though
the prosecution had taken custody of all the clothes which
F Namita had taken with her on the honeymoon trip, they were
not produced at the trial for identification by the witnesses. Only
photographs of the clothings, which had been allegedly taken
on 12th June, 1979 i.e. after 16 days, were produced.

38. Mr. Malhotra had, however, submitted that these
G clothes were torn, lacerated in blood stains and, t~erefore, must
have withered away into waste beyond recognition. In our
~
,..
)
opinion, the High Court has correctly taker( view that the
prosecution was duty bound to produce the clothings at the trial.
It was through these clothings and articles that the prosecution
H
STATE THROUGH C.B.I. v. MAHENDER SINGH 1147
DAHIYA [SURINDER SINGH NIJJAR, J.]
had sought to establish the identity of the deceased. The High A
Court, in our opinion. correctly recorded the conclusion that on
;I<
consideration of the relevant evidence of the witnesses and
various documents on record, the prosecution had miserably
failed to establish the recovery of clothes or shoes by means
of any cogent and reliable evidence. The High Court also held . B
that the identification of the clothings and shoes as belonging
to Namita through the testimony of PW-48 Jagdish Singh
Lochab and PWUK-2 Arnita Lochab was not sufficient to
+ discharge the burden of proof which lay on the prosecution. The
High Court notices that the identification of the shoes by Mr. c
Lochab could not be definitely said to have made in the
presence of any police officer. Mr. Lochab was unable to
remember if any police officer was present or not at the time
of the identification. In the first instance, he had stated that the
· officer had recorded his statement and he had signed the same
D
with regard to the identification of the clothes. However, in the
'!' same breath, when confronted with the previous statement
made to the Belgium Investigation Authorities, he denied it. The
High Court also notices that there was no mention of any
identification test of clothings having been made by these
. witnesses. In our view, the High Court had drawn the only logical E
conclusion from the aforesaid that this witness was not
consistent so far as the identification of the clothes are
"'<' concerned. The prosecution did try to prove that the shoes
recovered were only purchased in Britain and that it had been
purchased from Top Shop. The High Court observed that the F
test identification of the property has not been done in
accordance with certain well settled legal parameters. Certain
safeguards had to be observed to rule out the possibility of any
doubt or confusion. Apart from the technical objections with
regard to the test identification, the High Court adversely G
~ commented that only photographs of the clothes were
produced. 'fie, therefore, find no merit in the submission of Mr.
Malhotra trrat the clothes had been definitely identified as
belonging to Namita.
H
1148 SUPREME COURT REPORTS [2011] 1 $.C.R.

A IDENTITY OF THE BODY PARTS
39. This now brings us to a vital segmentof the case which
had to be proved by the prosecution i.e. identity of the body
parts recovered on 29th May, 1979 and 2nd August, 1979 as
that of Namita. To link the body parts to Namita, the prosecution
8
had examined a number of witnesses. Heavy reliance was
placed by the prosecution on the report of the postmortem
examination conducted by Dr. Rilleret (since dead} and PWBG-
4 G. Voordecker, Forensic. Pathologist. The prosecution also +
relied on the evidence of PWBG-5 Lambert Claudine and
C Stomatologist PWBG-20 Wackens Georges, who had
examined the dental specifics of the body and the report of
finger/palm prints experts. The other witnesses relied upon by
•
the prosecution were PWUK-1 Smt. Chandermukhi Lochab
and PW-48 Jagdish Singh Lochab, i.e. mother and father of
D Namita. They gave description of certain identification/special
marks which Namita had on her person. According to Jagdish
Singh Lochab (PW-48}, Namita was about 5'-4" of height, the
hair of her head were black, she had 31 teeth instead of 32 as
one tooth had been extracted at young age; she had a scar on
E her right knee, had a fracture of her left wrist and had a smallpox
inoculation mark on her left upper arm. PWBG-4 Voordecker
Guy has concluded its rep9rt as und~r:-

(i} The victim had been strangulated.
F (ii} The hair of the victim were black.

(iii} The victim was a young woman of non-white race
of a height of 1 meter 60 ems. (Emphasis
supplied)
G
(iv} The victim had a special feature at the teeth level
i.e. the existence of a single upper central incisor
tooth.

(v} An old Coutaneous triangular cicatricies mark of
H
STATE THROUGH C.B.I. v. MAHENDER SINGH 1149
DAHIYA [SURINDER SINGH NIJJAR, J.]
three centimeters was there on the surface of right A
--7 ~ knee cap.

(vi) There were bums on the chin at the left retro articular
region and also on the limbs, on the left a_nd right
arms and left forearm. These bums appeared to be
B
caused after death.

· (vii) The dislocation of the body was work of a doctor/
·. ·+ surgeon or a butcher.
"-

(viii) The autopsy was done on 29th May, 1979 and the c
death took place within 48 hrs.

(ix) The autopsy was carried out on 29th May, 1979
but report submitted on 11th December, 1979.

(x) The examining doctor could not say if there were ,o
·-y vaccination marks on left arm and callosities in the
front side of the feet. (Emphasis supplied)

40. The Stomatologist PWBG-20 Wackens Georges
concluded his opinion as follows:-
E
(i) That the body belonged to a person having
feminine sex.

(ii) It was of a person between 20 and 30 year$ of age
who was of African or Indian origin. (Emphasis F
supplied)

(iii) Left upper incisor was not there which might have
been lost since long time.

(iv) The teeth were of a person who lived in an affluent G
social status.

41. Mr. Aggarwal has criticised th~ veracity of the
aforesaid findings on a number of grounds which have also
been considered by the High Court. Mr. Aggarwal has H
1150 SUPREME COURT REPORTS [2011]' 1 S.C.R.

A reiterated the submissions which were made before the High
Court. He submits that the postmortem examination on the J .
body parts recovered in the morning of 29th May, 1979 was
conducted by Dr. Rilleret and Voordecker Guy on 29th May,
1979 itself. The report is given about seven months later,, on
B 11th December, 1979. In this report, the conclusions are as
under:-

" From all the findings we are entitled to admit that the
(sick) considered human remains are of a young woman +- .
of about 160 ems, of coloured race. (Emphasis supplied)
c
The cuts were made after death by an individual who is
apparently experienced in disjoining and who respected
the anatomic characteristics.

D The pre,sence of bloodstains in the eyes makes us think a
murder by constriction.
"
The remains were burned superficially."

42. According to Mr. Aggarwal, the postmortem report was
E prepared after consultation with the father and sister of Namita.
This fact is apparently mentioned on page 24 of the report of
Dr. Rilleret. We may also notice that the postmortem
examination of the torso/trunk portion recovered on 2nd August,
1979 was performed by Dr. Rilleret (since dead) and PWBG-
F 4 Voordecker Guy on 3rd August, 1979. On a comparison of
the evidence gathered respectively on 29th May, 1979 and 2nd
August, 1979, these witnesses have recorded the conclusion
that "the human remains examined at the later date do
correspond to the same body namely to the corpse of Namita
Loch ab."
G
i'
43. The High Court upon considering the entire evidence
relating to this issue,, however, concluded that no reliance could,
be placed on the reports presented by the prosecution for the
purpose of establishing the identity of the body parts as that of
H
STATE THROUGH C.B.I. v, MAHENDER SINGH 1151
DAHIYA [SURINDER SINGH NIJJAR, J.)

Namita. The High Court highlighted that P'WBG-20 Wackens A
" "- Georges, Stomatologist had in the first instance stated on
examination of the dental specificities of the body parts on 30th
May, 1979, he recorded the report "X". However, ~ubsequently
he stated that he had given another report marked "A". He then
tried to explain that the provisional report was marked ~x· and B
the final report was marked "A". Upon comparison of the two
reports, the High Court concluded that the two reports are wholly
'
-t- inconsistent. In the alleged provisional report, on the basis of
the stomatological examination PWBG-28 Dooms Jeanean had
concluded as under:- c
"Female individual, at least thirty years old and of North
African type. Lived for a long time in a civilized; upper
middle-class1 environment. Good education. Taking much
care for her teeth. Regularly visited her dentist, who looks
tidy, experienced and serious. D,

The individual.lacks one upper left central incisor and her
left canine should have been rather conspicuous.
'The individual had probably a tic, such as biting her
fingernails.
El

This, and the other mentioned facts, suggest that the
~,
individual sho.uld be between 29 and 30 years old."
(Emphasis supplied}
Fl
44. However, in the final report, the conclusions recorded
were as under:-

"Individual belonging to the female sex whose age is
presumed between 20 and 30 years and belonging to the
II '>( North-African, Indian type. (Emphasis supplied) G

Lived since long in a civilized society in a well off category.
Had good education. Taking very good care of teeth and
used to visit regularly her dentist. The later used to take
good care of them regularly and' seriously. H
1152 SUPREME COURT REPORTS [2011) 1 S.C.R.

A The individual did not have a left upper central incisive and
had a prominently visible left canine. ~
'
It may not be overlooked that the individual have had a
habit, such as nibbling her fingers."
B 45. A perusal of the aforesaid clearly shows that in the
report which was prepared contemporaneously, the experts had
put the age of the deceased between 29 to 30 years. A perusal
of the same shows that initially the report states that the -t-
individual was at-least 30 years old and of North-African type.
c-At the end of the report, it is stated that the individual should
be between 29-30 years only. This opinion undergoes a change
by the time a final report is prepared. It is now stated that the
"Individual belonging to the female sex whose age is presumed
between 20 and 30 years, and beionging to North-African Indian
D type." The differences between the two reports are so glaring,
understandably, the High Court was compelled to hold that the
second report was clearly an afterthought and deliberate
improvement over the earlier report. The High Court, in our
opinion, appropriately concluded that this must have been
E made to cover up the first report which did not connect the body
parts with that of Namita in as much as age of Namita was
stated to be around 25 years. In fact, it is a matter of record
that Namita was born in 1956, that would make her only 24
'r
years at the relevant time.
F 46. The High Court thereafter took up the issue with regard
to the missing incisor tooth. We have noticed earlier that PW-
48 Mr. Lochab had stated that Namita had 31 teeth instead of
32 as one tooth had been extracted when she was of a very
young age. The High· Court notices that in his earlier statement,
G he had stated that another tooth had been fixed at the place of ')<
..
the tooth so extracted. This was done so that no anomaly
existed in her denture. This witness was also not able to speak
with certainty about the Namita having a scar on her right knee.
The High Coart also took note of the fact that this witness did
H
,
STATE THROUGH C.B.I. v. MAHENDER SINGH 1153
DAHIYA [SURINDER SINGH NIJJAR, J.]

not mention any of these identification marks at the time when A
he had lodged the missing report. He had rather stated that he
was not aware of any visible marks or scars or other
peculiarities of Namita. He was not even sure about the colour
of Namita's hair as he had stated that her hair were dark
brown. Contrasted with this, the evidence of the mother PWUK- B
1 was that one of the Namita's front tooth was missing.
However, there was no gap in between the incisors. She had
stated that Namita had a scar mark on her left knee. She also
stated that Namita had three inoculation marks on her shoulder.
The High Court notices that this witness was, however, not able c
to give details of any identification marks on her other children.
This, in our opinion, would be sufficient to justify the conclusion
reached by the High Court that neither the mother PWUK-1 nor
the father PW-48 of Namita were exactly aware/sure of any
identification marks of Namita. The High Court, therefore,
0
observed that a possibility can not be ruled out that these
witnesses may have given these marks after the disclosure of·
such marks in the postmortem examination's report. In fact, it
may be noteworthy that no vaccination/inoculation marks have
been found by the doctors, who conducted the postmortem
examination. E

47. Mr. Malhotra had, however, emphasised that the'
identity of Namita had been established from the comparison
of palm prints found in the house of her parents and the palm
prints of the body partsfound in the rubbish container. The High' F
Court examined this issue with due care and caution. It is
noticed that PWUK-18 Christopher John Coombs, the finger
print expert was not able to conclude that the evidence
produced would connect-the palm prints with the palm prints of
Namita. The reports submitted by the doctors contained G
numerous discrepancies. This apart the identification marks
given by the witnesses did not coincide with the reports.
Therefore, the High Court concluded that no implicit reliance
could be placed upon them for the purpose of establishing the
identity of these. body parts as that of Namita. H
1154 SUPREME COURT REPORTS [2011) 1 S.C.R.

A RECOVERY OF THE BLOOD FROM THE BATHROOM

48. Mr. Malhotra had emphasised that the examination of
the blood recovered form the bathroom'..and the blood group
of Namita, both being identical, the Hig~ Court wrongly failed
to rely upon the same. The High Court rejected the blood report
B on the grounds that report in many columns used the term "Nihil"
meaning "No". The report also contained question marks, blank
spaces at various places. The report suggests that it is merely
a comparison of favorable characteristics. The experts did not --+-
provide any explanation in regard to the terms that had been
C used in the report. In fact, the High Court records a conclusion
that the report used different methods i.e. ABO method and Gm
method without giving any justification as to why the two
different methods were used. Therefore, the High Court
concluded that unfavorable characteristics/factors detected
D during the course of examination had been suppressed. The
High Court also took note of the fact that the prosecution failed
to place on record any cogent evidence with regard to the blood
group of Namita. PW-48 only stated her blood group was 'O',
but even he was not able to say whether it was 'O+' or '0-'.
E The High Court quite appropriately observed, on the basis of
the opinion of the examining experts, that more than fifty per
cent population of Belgium has 'O' blood group. In such state
of affairs, the High Court was constrained to conclude that the
prosecution has not been able to establish even this limb by
F means of cogent and reliable evidence.

49. Mr. Aggarwal had also pointed out a number of other
infirmities with regard to the non-comparison of a blood sample
taken from the body parts recovered. He had pointed out that
G no reliance could have been placed on the analysis of the
blood by PWBG-17. According to Mr. Aggarwal this witness
had examined "crusts"/"lumps" of "dark red" blood. This,
according to Mr. Aggarwal, would indicate that the blood
belonged to a living person since it was coagulated and that
the blood was fairly new. This in tum would lead to a reasonable
H
STATE THROUGH C.B.I. v. MAHENDER SINGH 1155
DAHIYA [SURINDER SINGH NIJJAR, J.]

inference that the blood did not belong to Namita Lochab, in A
as much, as her blood should been "powdery" i.e. non-
'
'" coagulated (belonging to a dead person). It should have been
brownish black I black in colour as it would have been old blood,
since it was recovered more than two weeks after the alleged
dismemberment of her body in the bathroom. In support of the B
submission, Mr. Aggarwal had relied on Parikh's Textbook of
Medical Jurisprudence Forensic Medicine and Toxicology, in
particular on page 7.11 and 7.23. In the aforesaid textbook, it
is stated as under:-

"Character: Sometimes, it is possible to determine if blood
c
came from (a) living or dead body (b) artery or vein (c)
victim or assailant (d) infant or adult, and (e) male or. female.

Living or dead body: Blood which has effused during life
can be peeled off in scales on drying due to the presence D
of fibrin. Blood which has flowed after death tends to break
up into powder on drying."

The issue was· raised before the High Court. The High Court,
however, rejected the reports for the reason stated as. not being
E
intrinsically reliable.

50. We are of the considered opinion that there is no
~· reliable evidence to indicate that the blood that was recovered
from the bathroom of room no. 415 definitely belonged to
Namita. It must be remembered that the only drop of blood that F
was found was at the base of the bidet, in the bathroom. The
bathroom would be used successively by different tourists
occupying the room. This apart, the very recovery of the blood
~ stains from the bidet seems highly doubtful. It has come into .
the evidence of PWBG-19 Salomone Levy, the Manager of the G
~ hotel in whose presence the blood stains were allegedly lifted,
that many tourists had occupied room no. 415 between 29th
May, 1979 and 12th June, 1979. According to him, no tourists/
guests ever complained of any blood spot on the bidet. The first
eve~ discovery of blood was stated to be on 12th/13th June, H
1156 SUPREME COURT REPORTS [2011) 1 S.C.R.

A 1979, i.e., about 14 days of the alleged incident. If the blood
stains lifted from the bidet were of a person who was killed on
28th May, 1979, the same could not be of red or red brown
colour. The colour of the stain would have been blackish brown.
It appears to us that the High Court was wholly justified in
B rejecting the evidence with regard to the recovery of blood from
the bidet.

51. We now come to the final circumstances relied upon
by the prosecution with regard to the conduct of the respondent
1
C after returning to England. We are of the considered opinion
that the High Court was not correct in drawing an adverse
inference against the respondent because he remained in
hiding till he was arrested by the CBI. In this case, the
subsequent conduct of the appellant is not consistent with the
expected conduct of a guilty person. If the respondent had any
D intention of absconding, he could have done so initially after the
alleged murder of his wife. He had no need to come back to
England. Having come back he need not have gone directly to
the house of his in-laws. Not only did he come back to England,
he carried with him the red suitcase containing some of
E Namita's clothes. According to the prosecution, this suitcase
had contained blood stains which had belonged to Namita. It
is inconceivable that a person having a guilty mind would have
been carrying such an incriminating article back to the house
of his in-laws. As noticed above, he went back to India
F apprehending danger from his father-in-law and family. This
apprehension of danger to his life at the instance of his father-
in-law continued even in India. The fact that an attempt was
made on his life had been duly recorded by the trial court. The
respondent had been petitioning the police authorities as well
G as the Home Minister and the Prime Minister of India seeking
protection. Evading arrest would certainly be an illegal act but
it does not lead to the only conclusion that the respondent was
hiding due to a guilty conscience. We may also notice here the
observations made by this Court in the. case of Matru Alias
H
\
_., STATE THROUGH C.B.I. v. MAHENDER SINGH 1157
\ DAHIYA [SURINDER SINGH NIJJAR, J.]

Girish Chandra Vs. The State of Uttar Pradesh 7 which are as A
,, follows:-

"The appellant's conduct in absconding was also relied
upon. Now, mere absconding by itself does not necessarily
lead to a firm conclusion of guilty mind. Even an innocent
B
man may feel panicky and try to evade arrest when wrongly
suspected of a grave crime such is the instinct of self-
preservation. The act of absconding is no doubt relevant
-+ piece of evidence to be considered along with other
evidence but its value would always depend on the
circumstances of each case. Normally the courts are c
~ disinclined to attach much importance to the act. of
absconding, treating it as a very small item in the evidence
for sustaining conviction. It can scarcely be held as a
determining link in completing the chain of circumstantial
evidence which must admit of no other reasonable D
y
hypothesis than thafof the guilt of the accused."

52. We are of the considered opinion that the respondent
did not come out of hiding due to fear as also to avoid arrest
by the police but it certain,ly can not be concluded that he was E
.L hiding because of a guilty conscience .
'-
53. We may also notice here that according to the
prosecution, dismemberment of the body parts was performed
either with surgical instruments or with the aid of a butter knife
and a fork. However, at the trial, the prosecution did not produce F
any evidence with regard to the recovery of any weapon of
offence. Nor any weapon was produced in court, at the trial.
Even according to the sequence given by the prosecution, it
would have been impossible for the respondent to procure the
----<! surgical instruments in the city of Brussels during the night . G
intervening 27th/28th May, 1979. It is a matter of record that
the entire group of tourists did not return back to the hotel till
after 11 O' clock during the tour "Brussels by Night". Namita

7. (1971) 2 sec 75. H
1158 SUPREME COURT REPORTS [2011) 1 S.C.R.

A was with him throughout the tour. Equally he could not have
carried the surgical instruments with him without the same being ·•
noticed at the customs barriers. This apart, p~osecution has
miserably failed to establish that the respondent had any
intention of committing the murder of his wife at the
B commencement of the honeymoon trip. Even Namita's parents .
did not entertain any such apprehensions. It is also the
prosecution case that something went amiss in room no. 415
during the night of 27th/28th May, 1979. Therefore, it makes
the possession of surgical instruments by the respondent on -+-

c the fateful night in Brussels virtually impossible. We are also
unable to accept that such severance of the body parts could
possibly be achieved by use of a simple butter knife. It is simply
too farfetched a notion to be taken seriously.

54. We are of the considered opinion that the conclusions
D reached by the High Court would clearly show that the
prosecution had miserably failed to connect the respondent with
the alleged murder of his wife. The conclusions recorded by the
High Court are fully justified by the evidence on record. We are,
therefore, unable to agree with Mr. Malhotra that there has been
E any miscarriage of justice in the facts and circumstances of this
case.

55. Before we part with this judgment, we must place on
record our appreciation of the very valuable assistance
F rendered by Mr. P.P. Malhotra, the learned Additional Solicitor
General and Mr. Siddharth Aggarwal, who appeared for the
respondent.

56. We, therefore, find no merit in the appeal. The appeal
is accordingly dismissed.
G >
D.G. Appeal dismissed.

\