Prem Chand S/O Shri Chhaju Ram ... vs The State (Nct Of Delhi)
2006 Latest Caselaw 1704 Del

JUDGMENT

Madan B. Lokur, J.

1. The Appellant is aggrieved by a judgment and order dated 29th January, 1999 passed by the learned Additional Sessions Judge in Sessions Case No.36/1999. By the impugned judgment and order he was convicted of an offence punishable under Section 302 of the Indian Penal Code. Subsequently, by an order of the same date, the Appellant was sentenced to undergo imprisonment for life and also to pay a fine of Rs.5,000/-. In the event of his failure to deposit the fine, he would have to undergo simple imprisonment for three months.

2. The broad facts leading up to this appeal are that on the evening of 5th February, 1996, the Appellant is alleged to have severely beaten his wife, Maina (deceased). She raised a hue and cry and the neighbours in the jhuggi colony intervened to save her from further beating. The beat constable of the area was called to the spot but when he reached there, the Appellant ran away.

3. After the incident, the deceased was afraid of spending the night in her husband's jhuggi and so, she and her two children went to the jhuggi of a neighbour Joginder Singh, s/o Shri Amar Singh and slept there.

4. It appears that around 11 or 11.30 pm, the Appellant brought her back to their jhuggi, leaving the children in Joginder Singh's jhuggi.

5. Next morning, on the basis of some anonymous information received by the police, a party reached the Appellant's jhuggi and found the dead body of the deceased, which was identified by a tattoo mark bearing her name. The corpse showed abrasions on the neck, which seemed to be caused by nails and teeth bite marks on both cheeks. The jhuggi did not appear to have been ransacked and the Appellant, husband of the deceased, was nowhere to be seen.

6. Enquiries were made by the police from the neighbours and it came to be known that the Appellant was addicted to liquor and used to beat up the deceased quite frequently. Even on the evening of 5th February, 1996 he had beaten the deceased which apparently caused so much fear in her mind that she decided to take her two children and spend the night at the jhuggi of Joginder Singh.

7. The Appellant was not traceable on 6th February, 1996 but on the basis of some secret information he was arrested on 7th February, 1996 in front of New Delhi Railway Station. On interrogation, he made a disclosure statement which was reduced to writing. Learned Counsel for the Appellant relied upon a part of the disclosure statement Exh. PW-9/B, in which it is stated that he had beaten Maina on 5th February, 1996 evening and that at about 11.00 pm that night, he brought his wife from Joginder Singh's house to their house and had sexual intercourse with her. Maina then tried to leave the house and refused to sleep there. Thereupon, he lay down with her and bit her on both cheeks and being under the influence of liquor, he committed an unnatural act with her. When she insisted on going outside, he pressed her neck forcefully and she died then and there. According to the Appellant, this was around 1.00 am. He explained that he had bruise marks of the nail on his left cheek which he sustained when his wife resisted his pressing her neck.

8. On 8th February, 1996, the Appellant was sent for a medical examination. The medical report shows that he had an abrasion on his left cheek (allegedly a 2 days old nail injury) and scab had started forming. He also had a swelling in his left testicular region.

9. In so far as the deceased is concerned, her corpse was sent for postmortem examination on 7th February, 1996 and the post mortem report Exh. PW-12/A showed:

1. Teeth bite mark on right cheek bone area & central bruising (1-1/4 diametre) & impressions of teeth at periphery.

2. Similar teeth bite mark seen on lower part left cheek and impression of teeth all around encircling 1-1/4 area of bruising (Redish).

3. Bruising reddish in colour 1-1/4 x 1 on sub mental area.

4. Irregular scratch abrasions on the front of neck-upper & middle parts on right side & in mid line 1 to 2 cm long. Two of their resemble finger nail marks.

5. Bruising 3/4 x 1/2 on right angle of lower jaw.

6. There is slight bruising on the pest vaginal wall at 6 o'clock position & there is matting of pubic hair. No obvious deposit seen.

According to the doctor, the injuries were ante mortem and some of them were caused by application of a blunt force during the process of strangulation and were sufficient in the ordinary course to cause death. However, death was caused due to asphyxia resulting from strangulation.

10. After completion of investigations, a challan was filed under Section 173 of the Criminal Procedure Code and on the basis of material on record the following charge was framed against the Appellant: -

That on the night intervening 5th and 6th February, 1996 in Jhuggi No.A-9/241, Lalbagh, Azadpur, Delhi within the jurisdiction of P.S. Adarsh Nagar, you committed an offence punishable under Section 302 IPC and within my cognizance.

11. The Appellant pleaded not guilty and so a trial was conducted in which the prosecution examined as many as 16 witnesses. The Appellant did not examine anyone in his defense but later gave a statement under Section 313 of the Cr.P.C.

12. From the testimony of PW-3, Ram Wati a neighbour of the couple, it is quite clear that on 5th February, 1996 the Appellant had severely beaten the deceased while he was under the influence of liquor. She stated that the beat constable Vijender Singh was called and as soon as he arrived, the Appellant fled from the spot. Ram Wati also stated that the deceased took shelter in the jhuggi of one of her neighbours and during the night, the Appellant went to that jhuggi and brought the deceased back to his own jhuggi, where she was found dead the next morning.

13. PW-4, Maya Ram another neighbour, stated that the Appellant used to consume liquor and was in the habit of beating his wife after doing so. He reiterated the incident of 5th February, 1996 when the Appellant severely beat the deceased in his presence as well as in the presence of Ram Wati. He confirmed that the deceased took shelter for the night in the jhuggi of a neighbour, that is, Amar Singh father of Joginder Singh and that the deceased was found dead in her jhuggi on 6th February, 1996.

14. The broad events, particularly those concerning the excessive consumption of liquor by the Appellant and his frequent beating of the deceased was also confirmed by PW-10, Hare Ram another neighbour; PW-2, Albad (father of the deceased) and PW-5, Smt. Sarli (mother of the deceased).

15. Vijender Singh entered the witness box as PW-11 and he confirmed that the deceased had complained about being beaten up by the Appellant on the evening of 5th February, 1996 and that when he reached her jhuggi, the Appellant had run away. He stated that he was the beat constable of the area and was aware of the fact that the Appellant used to frequently beat his wife.

16. The learned Judge summarized the factual conclusions that appear from the examination of the witnesses. These facts are

(a) The Appellant was addicted to liquor and used to frequently beat the deceased;

(b) On 5th February, 1996, he severely beat the deceased and when the beat constable came to the area, he ran away;

(c) Out of fear from the beating she received from the Appellant on the evening of 5th February, 1996, the deceased took refuge in the jhuggi of Joginder Singh s/o Shri Amar Singh and later that night the Appellant brought her back to his own jhuggi.

(d) The dead body of the deceased was recovered from the jhuggi of her husband, the Appellant on the morning of 6th February, 1996. There were injury marks on the face of the Appellant as well as the deceased who died of strangulation.

(e) The whereabouts of the Appellant were not known from 6th February, 1996 till his arrest on 7th February, 1996, pursuant to some secret information.

17. On the basis of these facts, the learned Judge concluded that even though the evidence available was circumstantial, it was enough to show beyond a reasonable doubt that the Appellant had murdered the deceased.

18. Learned amices Curiae took us through the entire evidence on record but has not been able to point out any flaw in the factual conclusions arrived at by the learned Trial Judge. His primary contention was that the injury marks on the person of the Appellant were made when he was in police custody on 7th February, 1996. It was argued that the Appellant was forced to make a disclosure statement and was falsely implicated.

19. We are not at all in agreement with this submission of learned amices Curiae. The medical report shows that the injuries were not recent and that is why scab had started forming. If the injuries were as recent as sought to be made out by learned amices Curiae, there would be no question of any scab being formed in such a short time. It must also be remembered that the Appellant strangulated the deceased and in that process, her resistance led to injuries on the Appellant. She seems to have scratched his face and also resisted his attempts to have forced sex with her. In other words, all the injuries on the Appellant are quite consistent with the events of the night intervening 5th and 6th February, 1996 and are also consistent with the Appellant's disclosure statement relied upon by learned Counsel for the Appellant.

20. In Sharad Birdhichand Sarda v. State of Maharashtra , the Supreme Court referred to and relied upon Hanumant v. State of Madhya Pradesh and stated the five golden principles constituting the panchsheel of the proof of a case based on circumstantial evidence as follows:

(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that...the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' .

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

Both the above decisions have recently been followed in State of Uttar Pradesh v. Satish .

21. Applying the principles culled out by the Supreme Court, we are of the view that the history of the Appellant's addiction to liquor, his frequently beating the deceased and the events of the evening of 5th February, 1996 followed by the fact that the Appellant brought the deceased back to his jhuggi where she was found dead the next morning clearly go to show that the death was caused by none other than the Appellant. In addition to this, we cannot overlook the fact that the Appellant was missing from his jhuggi or at least his whereabouts were not known throughout the day of 6th February, 1996 and he was arrested only on 7th February, 1996 on the basis of some secret information.

22. It was sought to be contended by learned amices Curiae that the Appellant was a rickshaw puller and he used to normally work at night and sleep during the day time. If this is so, it is all the more reason for the Appellant to be at his jhuggi on the morning of 6th February, 1996 but in fact he was not available in his jhuggi throughout the day. This clearly suggests that the case put up by learned amices Curiae to the effect that even on the night of 5th February, 1996 the Appellant was pulling a rickshaw is clearly unsubstantiated.

23. In State of Rajasthan v. Mahavir alias Mahavir Prasad AIR 1998 SC 3041, the Supreme Court considered a case where a husband and wife were staying together and the wife died under suspicious circumstances. The Supreme Court observed that in such a situation some reasonable explanation is expected from the husband. Applying the test laid down by the Supreme Court, we find that the Appellant has given absolutely no explanation for his absence from his jhuggi on 6th February, 1996 till the next day.

24. On the contrary, from his disclosure statement it appears that the Appellant had a suspicion about Maina's character for the last about 4 years. Indeed, to try and establish his point, the Appellant asked questions about Maina's character to at least four witnesses, that is, PWs 1, 2, 3 and 5. This is relevant for showing that the Appellant apparently had a motive to kill Maina.

25. All the facts of the case as well as the parameters for consideration laid down by the Supreme Court leave no doubt in our mind that the Appellant had murdered his wife, Maina on the night intervening 5th and 6th February, 1996.

26. We find no merit in the appeal. It is, accordingly, dismissed. The Appellant be informed through the Superintendent, Tihar Jail.