REPORTABL E

IN THE SUPREME COURT OF INDIA    CRIMINAL APPELLATE JURISDICTION

      CRIMINAL APPEAL NO. 1360 OF 2003

State through C.B.I                                      … Appellant  

VERSUS

Mahender Singh Dahiya                              …Respondent  

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. This appeal is directed 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 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  

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and also imprisonment for seven years and fine of  

Rs.5,000/- for offence under Section 201 IPC.

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  

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 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  

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appeal.   The High 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.

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 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 grown up in England since she was  

5  or  6  years  old.  The  offence  was  allegedly  

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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  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  authorities.  The  case  was  ultimately  

investigated by the CBI and the charge sheet was  

presented             on 30th July, 1985.  At the trial, a  

large number  of  witnesses being foreign nationals  

were examined on commission either 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  after  the  

alleged commission of the crime.   

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5. We may now notice some of the undisputed facts,  

which 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,  Haryana.   He  

obtained his MBBS degree from Punjab University,  

Rohtak  in  1973  and  M.S.  Degree  in  (Orthopedic)  

from A.I.I.M.S., New Delhi in December, 1978.  He  

got  himself  registered  with  the  Punjab  Medical  

Council.

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  namely  Namita,  Amita  

Lochab  (PWUK-2)  and  Shiela  (PWUK-3)  and  two  

sons.   Namita  born  in  India  in  May,  1956  had  

acquired British citizenship.  During 1978, Namita  

was working  as  accounts trainee  with  the  British  

Broadcasting Corporation (BBC), London. In  July-

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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 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 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  

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  

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the same time, he pursued his 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 Namita and respondent  

valued  20,000  UK  Pounds.  He  paid  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 by  

the bank.

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-23 Philips David  

Abbey,  a  colleague  of  Namita  were  invited  in  the  

party. Mr. and Mrs. Lochab left the house at about  

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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 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  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  Mahendra,  suggesting  that  wedding  should  be  

cancelled in the month of May, until both of them  

were  ready  for  the  same.  She  advised him to  get  

some self  confidence  to  prove  himself  responsible  

enough to look after a wife and a home. In reply, the  

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accused wrote a letter, to Namita addressing her as  

Nita, which is exhibit CW-14 (Vol.9, page 290).

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  

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  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  

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fourth floor of Hotel Arenberg, Brussels.  Mahender  

and Namita checked into room no. 415. 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.

10. Hereafter, there are two versions, one according to  

the  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. 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, after  

withdrawing the money from the bank, he went to  

the  house  of  his  in-laws.   He  was  carrying  two  

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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  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 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/particulars.  

He left for India via Frankfurt, West Germany and  

reached Delhi                 on 6th June, 1979. He  

afterwards, remained underground and absconding  

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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 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.   

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  various  facts  and  circumstances  was  

discussed under various heads in order to see if the  

chain of circumstances for bringing home guilt for  

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offences with which the accused had been charged  

was complete or not. The trial court discussed the  

facts  which  were  sought  to  be  proved  by  the  

prosecution under the following heads :-

“A. Native  place  of  the  accused  and  his  educational qualifications.

B.    Marriage of the accused, his departure for  U.K. his stay at the house of his in-laws  and registration of the marriage there;

C. Birthday  party  at  the  house  of  his  in- laws;  his  conduct  at  and  after  the  birthday party; his relations with Namita  before  and  after  the  Birthday  party,  letters  exchanged  between  the  accused  and  Namita  and  the   apology,  if  any,  tendered by the  accused with regard to  his conduct;

D. Arrangement  for  conducted  tour  to  Brussels; departure from London on the  morning  of  27.5.79  and  reaching  Brussels in the evening; sight-seeing tour  of  Brussels  by the  accused and Namita  on the evening of 27.5.79 and return to  the Hotel;

E. Visit of the tour guide, Richard Anthony  Cushnie  (PWUK-12)  in  the  morning  of  28.5.79 when the accused told him about  his decision to stay back; the manner in  which the accused dealt with the Pantry  

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clerk,  Benselin  Myriam  (PWBG-24)  who  wanted  to  enter  his  room to  check  the  refrigerator;  visit  of  the  chamber  maid,  Ms.  Mujinga  Maudi  (PWBG-22)  for  the  purpose  of  cleaning  the  room  and  her  observations  about  the  condition  of  the  accused  at  that  time;  the  condition  in  which the room of  the Hotel  was found  and request of the accused for his stay in  the hotel for extra night; and what these  point out to ?

F. The  arrival  of  the  accused  in  London  without 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  by  jumping  into  a  running  bus;  and  if  these  circumstances  are  of  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.  

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.    

I. Report of the post mortem in respect of  the  parts  of  the  human body  recovered  on  29.5.79  and  other  evidence  showing  that the dismembered parts were that of  Namita.  

J. Evidence  connecting  the  torso  to  be  of  Namita.

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K. Evidence  collected  from  the  suitcase  allegedly  brought  by  the  accused  to  London establishing that the blood in the  suitcase was of Namita.

L. Other evidence in the form of recovery of  clothes and shoes of  Namita along with  dismembered  human body.

M. Absconding of the accused and the efforts  made by the police in apprehending him  vis-à-vis  explanation  given  by  the  accused in that regard.

N. Reference  received  from  Belgium  Government  for  extradition  of  the  accused and subsequent abandonment of  the  request  and  sanction  granted  by  Central  Government  for  prosecution  of  the accused in India.

O. Other  facts  referred to  on behalf  of  the  accused  breaking  the  chain  in  circumstantial evidence.”

13. The learned Additional Solicitor General then drew  

our 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 proved by the trial court  

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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 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 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 committed the murder of his wife.  

Having  committed  the  murder  he  discarded  the  

body  parts  as  narrated  above.  Mr.  Malhotra  had  

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placed strong reliance  on the cumulative  effect  of  

the  circumstances  established  on  the  record.  He  

relied on the following facts: –  

(1) Namita was last seen alive in the company  

of the respondent on the night intervening  

27/28th May,1979

(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.

(4) He did not inform either the tour guide or  

any staff member of the hotel about his wife  

having voluntarily left.  

(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  

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is only two hundred meters away from the  

hotel.

(7) The body parts recovered from the rubbish  

bin  have  been  identified  to  be  those  of  

Namita by reliable expert evidence.  

(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.  

(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 seventeen minutes walking from the  

hotel.  

(12) Therefore,  there  is  scientific  evidence  to  

establish  the  identity  of  the  victim  to  be  

that of Namita.

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(13) He  ran  away  from  the  father  of  the  

deceased  at  the  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  

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  -  

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  respondent  in  the  

commission of the crime.  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  

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the opinion of the doctor, who conducted the  

postmortem  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  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  

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  been  virtually  impossible  for  the  

respondent  to  have  carried  surgical  

instruments  with  him  through  international  

borders without the same coming to the notice  

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of  the  customs  authorities.  Giving  the  

sequence  of  events,  as  projected  by  the  

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 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.,  fourth  floor  of  the  hotel,  

where  many  other  guests  of  the  tour  group  

were staying, at-least, someone or the other of  

the guests should have heard the screams of  

the victim.  The dismemberment of the body  

must have caused some tangible noise which  

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  

21

different locations where they were discovered.  

The  prosecution  has  failed  to  produce  any  

material objects to demonstrate how the body  

parts were shifted from the hotel room to the  

rubbish  container.  The  prosecution  had  

suggested  that  the  body  parts  had  been  

removed in the red suitcase (Ex.CW/26).

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  distance  of  about  two  hundred  

meters from the hotel 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  cms.  while  the  torso  

measured  69  cms.  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  

22

much later than 28th May, 1979 or a few days  

prior  to  2nd August,  1979.   If  the  torso  had  

been  thrown  in  the  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.   

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 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 buy a ticket  

back  to  India.   He  had  pointed  out  that  

Namita’s  air  ticket  from  London  to  Delhi  

23

(Ex.CW/3)  had  been  purchased  

for 350 pounds.   

xii) Learned  counsel  then  pointed  out  that  the  

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 the respondent).   

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.  

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  

counsel, would not be the rationale behaviour  

of  a  guilty  individual,  who  would  not  have  

risked returning to their house for the sake of  

his clothes.  In fact according to Mr. Aggarwal,  

24

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/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 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. 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  to  relevant  portions  of  the  

statement  recorded  by  PWUK-1,  PWUK-2,  

25

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  Station  where  the  missing  person’s  

report was lodged.  The respondent had duly  

informed  the  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  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 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  

26

his in-laws and expecting trouble from them.   

xvii) Mr. Aggarwal then pointed out various events  

to  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.  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.  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  

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  

27

produced witnesses from the village where he  

was  practicing  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  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 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  Procedure  Code  

(Cr.P.C.),  1973 and the  Indian 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  

28

with  them  to  ensure  compliance  with  the  

Indian  law.  In  fact  the  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.  

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.

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.    

29

19. Undoubtedly, this case demonstrates the actions of a  

depraved soul.  The manner in which the crime has  

been committed in this case, demonstrates the depths  

to  which the  human spirit/soul  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  

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  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.  

30

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  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  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 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 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  that within all human probability the act must  have been done by the accused.”

1 1952 SCR 1091

31

The aforesaid proposition of law was restated in the case  

of N  aseem Ahmed   Vs. Delhi Admn2, by Chandrachud J.  

as follows:  

“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 he  is  charged.  The  circumstances,  in  the  first  place,  have  to  be  established  by  the  prosecution by clear and cogent evidence and  those  circumstances  must  not  be  consistent  with  the  innocence  of  the  accused.  For  determining  whether  the  circumstances  established  on  the  evidence  raise  but  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 from a  consideration of the diverse circumstances and  their 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  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  

2 (1974) 3 SCC 668 32

summed  up  the  final  conclusion.   We  are  unable  to  

accept  the  submission  of  Mr.  Malhotra  that  the  

conclusions reached by the High Court are 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.

22. It  would  be  appropriate  to  discuss  these  

incidents/circumstances under different headings.

Motive

23. Upon consideration of the evidence on record, the  

High 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  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 fatal to the prosecution. Where the case of  

33

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  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  

Administration  4  ).

We  may  also  notice  here  the  observations  in  Subedar  

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  known to the assassin and no one else may  know what gave birth to the evil thought in the  mind of the assassin.”

3 1993 Supp (3) SCC 681 4 1994 Supp (3) SCC 367 5 1989 Supp (1) SCC 91

34

Again reiterating the role played by motive in deciding as  

to whether the prosecution has proved the case beyond  

reasonable doubt against an accused, this Court in the  

case of Suresh Chandra Bahari Vs. State of Bihar  6   held  

as under:-

“Sometimes  motive  plays  an  important  role  and  become  a  compelling  force  to  commit  a  crime and therefore motive 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  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  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 male friends at the birthday party  

of her sister Shiela would not be sufficient to hold that  

6 1995 Supp (1) SCC 80

35

the appellant had the necessary motive to kill her.   It is  

inconceivable  that  the  respondent  would  have  married  

Namita only for the purpose of committing her murder,  

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  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 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, 1979. There was no untoward incident  

36

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  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 concluded  

that  “it  is  highly  improbable  to  comprehend  that  

respondent had a predetermined mind or motive to cause  

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  attitude  of  the  parties  been  as  

suggested  by  the  prosecution,  they  would  not  have  

agreed  to  a  marriage  followed  by  a  honeymoon  trip  

outside London.”  The High Court also noticed that there  

37

was  nothing  to  suggest  that  Namita  or  her  family  

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 had married the deceased only with a view to  

do  way  with  her  to  take  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 -   

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 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,  

38

observed that it was for the respondent to explain about  

her 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 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 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  

also narrated before the police that his wife had left him  

voluntarily on the morning of 28th May, 1979. This fact  

39

was further reiterated by him in the letter to the Prime  

Minister of India which runs as follows :-

“…..After  seeing  these  historical  places  we  reached to our room. We took our bath and  she gave  me half  currency  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 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  not  to  follow  her.  I  waited  till  morning  when the Cosmos Coach guide came to room  and asked to get ready 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  

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 28  th   May, 1979 -        

40

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,  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.  

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 that the tour party was ready to leave.  

He  knocked  on  the  door.  It  was  half  opened  by  the  

respondent. He found the respondent was perspiring but  

at  the  same  time  assumed  his  behaviour  to  be  quite  

normal or non exceptional. The High Court also notices  

41

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  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  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  

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 in the  

42

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 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  

Court wrongly discarded the evidence of this witness.  

32. In  rejecting  the  evidence  of  PWBG-22  Majinga  

Maudi,  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 put a latch on  

the door nor did he take any extra precaution to keep the  

43

room closed.  This  witness  was 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  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 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 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  

44

enter  the  room in  his  absence.  We  do  not  accept  the  

submission  of  Mr.  Malhotra  that  the  cause  of  

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.  

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 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  respondent  cannot  be  said  to  be  

consistent only with the guilt of the respondent. In our  

opinion,  the  High  Court  correctly  notices  that  no  

45

explanation was forth coming as to where the body or  

dismembered body parts could have been concealed 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 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 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 pieces of clothings  

46

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 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,  a  

police officer of Brussels on reaching the site looked into  

the 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 Eesbeek Pierre.  They had  

found  in  the  container,  inside  a  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  

47

one  of  the  two  legs  and  the  feet  in  other  side  of  the  

container, also packed in a red fabric.  The High Court,  

therefore, 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,  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 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  report.   It  appears  that  no  contemporaneous  

48

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  

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 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 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  witnesses.  

49

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 even in the face of such  

material, the conclusion reached by the High Court is not  

plausible.   

37. We may also notice that prosecution had allegedly  

recovered  the  clothes  Namita  had  taken  on  the  trip.  

Namita’s  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  

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  

50

been  allegedly  taken  on  12th June,  1979  i.e.  

after 16 days, were produced.   

38. Mr.  Malhotra  had,  however,  submitted  that  these  

clothes  were  torn,  lacerated  in  blood  stains  and,  

therefore,  must  have  withered away into waste  beyond  

recognition.  In our opinion, the High Court has correctly  

taken  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,  in  our  opinion,  correctly  recorded  the  

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 High Court also held that the identification  

of  the  clothings  and  shoes  as  belonging  to  Namita  

through the testimony of PW-48 Jagdish Singh Lochab  

and  PWUK-2  Amita  Lochab  was  not  sufficient  to  

discharge  the  burden  of  proof  which  lay  on  the  

51

prosecution.  The  High  Court  notices  that  the  

identification of the shoes by Mr. 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 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  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 test identification of the property has not been done  

in accordance with certain well settled legal parameters.  

52

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  commented  that  only  

photographs of the clothes were produced.  We, therefore,  

find no merit in the submission of Mr. Malhotra that the  

clothes  had  been  definitely  identified  as  belonging  to  

Namita.   

IDENTITY OF THE BODY PARTS      

39. This now brings us to a vital segment of 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 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  

Stomatologist  PWBG-20  Wackens  Georges,  who  had  

53

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  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 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  

report as   under:-

i) The victim had been strangulated.  

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 cms. (Emphasis   

supplied)

54

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 three centimeters was there on the surface  

of right knee cap.

vi) There were burns on the chin at the left retro  

articular region and also on the limbs, on the  

left  and right  arms and left  forearm.   These  

burns appeared to be 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 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  vaccination  marks  on  left  arm  and  

callosities  in  the  front  side  of  the  feet.  

(Emphasis supplied)

55

40. The  Stomatologist  PWBG-20  Wackens  Georges  

concluded his opinion as follows:-  

i) That  the  body  belonged  to  a  person  having  

feminine sex.

ii) It was of a person between 20 and 30 years of   

age  who  was  of  African  or  Indian  origin.   

(Emphasis 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 social status.  

41. Mr.  Aggarwal  has  criticised  the  veracity  of  the  

aforesaid findings on a number of grounds which have  

also been considered by the High Court.  Mr. Aggarwal  

has reiterated the submissions which were made before  

the  High  Court.   He  submits  that  the  postmortem  

examination on the 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  

56

given about seven months later on 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  cms,  of   coloured race. (Emphasis supplied)

The  cuts  were  made  after  death  by  an  individual  who  is  apparently  experienced  in  disjoining  and  who  respected  the  anatomic  characteristics.  

The presence 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 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-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  

57

later date do correspond to the same body namely to the  

corpse of Namita Lochab.”

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 Namita.  The High  

Court  highlighted  that  P’WBG-20  Wackens  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,  

subsequently he stated that he had given another report  

marked “A”.  He then tried to explain that the provisional  

report was marked “X” and the final report was marked  

“A”. Upon comparison of the two reports, the High Court  

concluded that the two reports are wholly inconsistent.  

In  the  alleged  provisional  report,  on  the  basis  of  the  

stomatological  examination  PWBG-28  Dooms  Jeanean  

had concluded as under:-     

58

“Female individual, at least thirty years old and  of North African type.  Lived for a long time in a  civilized,  upper  middle-class  environment.  Good  education.   Taking  much  care  for  her  teeth.  Regularly visited her dentist, who looks  tidy, experienced and serious.   

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.

This,  and  the  other  mentioned  facts,  suggest  that the individual should be between 29 and  30 years old.” (Emphasis supplied)

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  North-African,  Indian  type.   (Emphasis supplied)

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.

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.”  

59

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 individual was at-least 30 years old  

and of North-African type.  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 belonging  to  

North-African Indian 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 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  

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matter  of  record  that  Namita  was  born  in  1956,  that  

would make her only 24 years at the relevant time.   

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, 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 Court also took note of the fact  

that  this  witness  did  not  mention  any  of  these  

identification marks at the time when 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  

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PWUK-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 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, 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.  

47. Mr.  Malhotra  had,  however,  emphasised  that  the  

identity  of  Namita  had  been  established  from  the  

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comparison  of  palm prints  found  in  the  house  of  her  

parents and the palm prints of the body parts found in  

the rubbish container.   The High 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  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.  

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  High  Court  

wrongly failed to rely upon the same.  The High Court  

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rejected the blood report 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 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  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  ‘O-‘.   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  

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of  affairs,  the High Court  was constrained to conclude  

that the prosecution has not been able to establish even  

this limb by 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 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 turn would lead to a reasonable  

inference that the blood did not belong to Namita Lochab,  

in  as  much,  as  her  blood  should  been  “powdery”  i.e.  

non-coagulated (belonging to a dead person).  It should  

have been brownish black / 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  submission,  

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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 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 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 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 was found was at the base of the  

bidet,  in the bathroom.  The bathroom would be used  

successively  by  different  tourists  occupying  the  room.  

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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  

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 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 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  

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  after  returning to  England.   We are  of  the  

considered opinion that the High Court was not correct  

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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  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 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  

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  

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the police authorities as well 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  Girish Chandra Vs.   The State of  Uttar  

Pradesh  7   which are as 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  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  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 hypothesis than that of  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 certainly can not be  

7 (1971) 2 SCC 75

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concluded  that  he  was  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 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  

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 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,  prosecution  has  

miserably failed to establish that the respondent had any  

intention  of  committing  the  murder  of  his  wife  at  the  

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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  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  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  any  miscarriage  of  justice  in  the  facts  and  

circumstances of this case.   

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55. Before we part with this judgment, we must place  

on  record  our  appreciation  of  the  very  valuable  

assistance  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.  

……………………………..J. [B.Sudershan Reddy]

……………………………..J. [Surinder  Singh  Nijjar]

New Delhi: January 28, 2011.          

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