Delhi High Court

Gurbachan Singh vs State on 19 August, 2008

Author: V.K.Shali

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL. APPEAL 724/2000

                                  Reserved on : 9th July, 2008
                                  Date of Decision:19th August, 2008


       GURBACHAN          SINGH                   ...... Appellant
                                       Through: Mr.Sumeet Verma,
                                       Adv. Amicus Curiae.


                                  Versus

       STATE                                 ...... Respondent.
                                  Through: Mr.Sunil Sharma, APP       for
                                  the State.


       CORAM :
       HON'BLE MR. JUSTICE VIKRAMAJIT SEN
       HON'BLE MR. JUSTICE V.K.SHALI


     1. Whether reporters of local papers may be
        allowed to see the judgment?             Yes
     2. To be referred to the Reporter or not?   Yes
     3. Whether the judgment should be reported in the Digest? Yes



                      JUDGMENT

V.K.SHALI, J:

1. This is an appeal filed by the appellant against the judgment

dated 29th September, 2000 and the order of sentence dated 9 th

October, 2000 passed by Sh.H.S.Sharma, Additional Sessions

Judge, Tis Hazari Courts, Delhi convicting and sentencing the

appellant to life imprisonment for an offence under Section 302 of

the IPC. The appellant was also sentenced to fine of Rs.10/- in

default and he was directed to further undergo sentence of 5 days

of Rigorous Imprisonment in default.

2. Briefly stated, the prosecution case is that the appellant was

married to one Smt. Jitender Kaur nearly 10-11 years back from the

date of the alleged offence. Smt.Jitender Kaur was alleged to have

been strangulated by the appellant on the night of 8 th and 9th

October, 1997 between 11.30 p.m. and 12.00 mid-night at the first

floor of House No.E-1/220, First Floor, Madangir where the couple

was residing. It was the case of the prosecution that the appellant

from the wedlock had two sons aged six years and three and a half

years or so. The elder son was being brought up by the father of

the appellant at their residence at Palam. The younger one was

staying with the appellant himself. The ostensible reason for

strangulating the wife was that the appellant was alleged to be an

alcoholic because of which there used to be frequent quarrels

between the appellant and the deceased. The latter used to

object to this habit of the appellant which he had picked up after

4-5 years of the marriage. It was also alleged by the prosecution

that on 9th October, 1997 at about 8 or 9 a.m. the appellant dropped

his younger son at the house of one Sh.Harbans Singh PW 6 whose

son was a class fellow of the appellant's son. It was said by the

appellant to Harbans Singh PW-6 that he was taking his wife to the

hospital and would come back in the evening and pick up his son.

On the next date i.e. 10th October, 1997, the neighbours of the

appellant found that bad odour emanating from the flat, whereupon

one of the relations of the deceased PW-1 Tara Chand relation of

the deceased was also informed who lodged a report vide DD

No.11A at police station Ambedkar Nagar and the investigation

revealed that Smt. Jitender Kaur was lying strangulated in the

room. The room was locked from outside. The lock had to be

broken with the help of locksmith PW-10 Sher Mohd. The body of

the deceased had started decomposing. While the process of

investigation was on, the appellant came to the place of occurrence

himself at about 4.00-4.30 p.m. on 10th October, 1997. He was

arrested and his search yielded one key of the lock which was found

on the door of the room. The accused is also purported to have

made the disclosure statement on account of which the piece of

cloth with which the deceased was allegedly strangulated was also

recovered from the room itself. The police after investigation filed

a charge sheet under Section 302 IPC against the appellant

whereupon on trial, he was found guilty, convicted and sentenced.

3. The prosecution in support of its case has examined 19

witnesses, namely, PW-1 Sh.Tara Chand, PW-2 Sh.Saroop Singh,

father, PW-3 Sh.Jasbir Singh (brother of the deceased), PW-4

Sh.Naresh Kumar, PW-5 Sh.Manjit Singh, PW-6 Sh.Harbans Singh,

PW-7 Constable Naresh Kumar, PW-8 Sh.Ashok Kumar, PW-9

Constable Sanjay Malik, PW-10 Sher Mohd., PW-11 Constable

Prakash Chand, PW-12 Sh.Sonu Kaushik, PW-13 Constable Afijullah

Malik, PW-14 Head Constable Karan Singh, PW-15 SI Bir Singh,

PW-16 SI Dhan Singh, PW-17 Dr. S.K.Gupta, (Department of

Forensic Medicines and Toxicology), PW-18 SI Asha, PW-19

Inspector Ombir Singh.

4. The accused was examined under Section 313 of the Cr.P.C.

The accused denied his involvement in the commission of the

offence although the factum of death of the deceased Smt.Jitender

Kaur is not in dispute. The appellant took the plea that on 9 th

October, 1997 in the morning he had gone to PW-6 Sh.Harbans

Singh's house and dropped his son there as he had to go to

Haldwani and return on the next day, while as his wife, since

deceased Jitender Kaur, was to collect the child from the residence

of Sh.Harbans Singh. The appellant in his statement under Section

313 Cr.P.C. has admitted the factum of recovery of key from his

possession at the time of his arrest. It is also admitted by him in

his statement that one of the legs of the appellant below the knee

of the deceased was under a plaster. The appellant did not

adduce any evidence in his defence.

5. We have heard the learned counsel for the appellant as well

as the State. We have gone through the records of the case.

6. At the outset, it is stated that both the learned counsel for the

prosecution and defence have admitted that the entire case is

based on circumstantial evidence. The learned counsel for the

appellant assailed the finding in the judgment of the learned

Additional Sessions Judge, on the ground that the entire chain of

circumstances has not been established beyond reasonable doubt

so as to leave any room for a hypothesis which is not compatible

with the innocence of the accused. It was in essence urged by him

that although there may be a grave suspicion that the appellant

may have committed the crime but the suspicion could not take the

place of proof which was the sole responsibility of the respondents

to establish beyond reasonable doubt. The learned counsel for the

appellant relied upon State of Haryana Vs. Jagbir Singh & Anr. 2003

(8) Scale 221 and Narendra Singh & Anr. Vs. State of M.P. 2004(4)

Scale 543. The latter authority was specifically relied upon to

make a point that although a plea of alibi was taken by the

appellant but it was not proved by him yet it was primarily for the

prosecution to prove the guilt of the appellant beyond reasonable

doubt.

The second submission made by the learned counsel for the

appellant is to the effect that no motive has been established by

the prosecution for the appellant to kill his wife. It was contended

by the appellant that although motive may not be necessarily

relevant and established in a case of direct evidence but motive

becomes very relevant in a case which is essentially based on the

circumstantial evidence and the present case being one based on

circumstantial evidence the motive must be established.

The third submission made by the learned counsel for the

appellant was that he had disputed the recovery of the key from

the appellant. It was contended that the recovery of the key from

the appellant was not established inasmuch as the only

independent witness to the personal search memo of the appellant

was PW-1 Tara Chand who did not support the prosecution case

regarding the recovery of the key from the appellant. It was urged

that this stood further reinforced by the fact that the recovery of

the key is not shown in the personal search memo Ex.PW1/4 of the

accused. It was contended that no weight could be attached to

the admission made by the appellant in his statement under

Section 313 Cr.P.C. regarding the recovery of the key from his

pocket. It was stated that the prosecution has to still prove the

recovery of the key independently. Reliance was placed on

Shahbuddin Vs. The State (NCT of Delhi) 2002 2(1) JCC 368.

7. The appellant also disputed the factum of having made the

disclosure statement to the Investigating Officer and the

consequent alleged recovery of the piece of cloth with which the

deceased was alleged to have been strangulated. It was also

urged by the learned counsel that assuming though not admitting

that the said cloth which was purported to have been recovered by

the prosecution in pursuance to the disclosure statement was

inadmissible in evidence on account of the fact that a fact which is

already known to the prosecution cannot be said to have been

discovered as it constitutes a fact which is already known to the

prosecution is in fact rediscovered. Elaborating this argument

further it was contended that a Crime Team had visited the place of

incident and seen the alleged piece of cloth lying in the room along

with number of ruffles where the incident is purported to have been

taken place yet they had not mentioned about the said piece of

cloth in its report. Therefore, the recovery of the said piece of

cloth subsequent thereto in pursuance to the alleged disclosure

statement of the appellant is inadmissible in evidence because this

fact of cloth being available in the room itself was already known to

the prosecution.

8. Per contra, the learned counsel for the prosecution

contended before us that the guilt of the appellant is proved

beyond reasonable doubt as the entire chain of circumstantial

evidence is completely established without leaving any room for

any fact which may be incompatible with his guilt. Thus it was

urged that he has been rightly convicted and sentenced by the

learned Additional Sessions Judge vide the impugned order. It was

contended by the learned counsel for the State that so far the

recovery of the key from the appellant is concerned, no doubt the

factum of the same having been recovered from the possession of

the appellant is not reflected in the personal search memo but

invariably when a person is arrested, an article which is a case

property and an article which is not a case property are recovered,

from the possession of the accused, they will be reflected in two

sets of separate memos. An article which is a case property will be

shown only in seizure memo and not in a personal search memo, as

has been the case in the present one. It was stated that as the key

of the lock which was found on the door of the room from where the

body of the deceased was recovered was a case property it was

seized vide memo Ex.PW7/1. This was the reason why the

recovery of the key does not find the mention in the personal

search memo.

So far as the motive of the appellant to kill his wife is

concerned, it was contended that the motive may not be necessary

to be established or proved in each and every case including that of

one which is based on circumstantial evidence. In the instant

case, it was stated that ostensible motive for the appellant to kill his

wife was that he was an alcoholic and the latter used to object to

the consumption of the alcohol and this had caused a serious

matrimonial discord and frequent quarrels between the appellant

and the deceased. It was stated by PW- 1 Sh.Tara Chand, that

almost a year back he had called the deceased to his residence as a

fallout of the same. It was only on the assurance of the appellant

and his father that the deceased was permitted to go to her

matrimonial home by PW-1. The existence of strained relations

between the appellant and the deceased was also corroborated by

PW-2 and PW-3 who are the father and the brother of the deceased.

With regard to the disclosure statement of the appellant and

the consequent recovery of the piece of cloth from the room with

which the deceased was strangulated, it was urged that the dead

body of the deceased was lying in the room where ruffles were

scattered all over. Accordingly, even though the Crime Team may

have inspected the room yet the piece of cloth with which the

appellant is alleged to have strangulated his wife, could not have

been found unless and until the same was specifically pointed out

by the appellant or any other person. This is precisely what had

happened that as a consequence of the said disclosure statement

Ex.PW1/3, the appellant led the police party to the scene of crime

and thereafter, got the said piece of cloth recovered from the room

in question among the bunch of ruffles lying there.

Learned counsel for the prosecution also placed reliance on

the judgment titled as A.N.Venkatesh & Anr. Vs. State of Karnataka

2005 SCC (Cri) 1938 in order to contend that the timing of the

deceased having expired four days prior to the time of post mortem

which was conducted on 12th October, 1997 could not be relied

upon as the basis of the exact time of the death of the deceased on

account of the fact that the decomposition of the body of the

deceased had already set in. Therefore, the timing given by

PW-17 Dr. S.K.Gupta with regard to the timing of the death could

not be relied upon as the exact time when the death of the

deceased is alleged to have taken place. The learned counsel for

the State also contended that there was no evidence at the scene

of crime to show that there was any forcible intrusion into the room

in question where the deceased was lying and the room was locked

from outside and the appellant was found to be in possession of one

of the keys of the said room at the time of his arrest would make

any reasonable person to draw an inference to the effect that it was

the appellant alone who could have killed his wife. Therefore,

there was no infirmity in the judgment and the order of sentence.

9. We have considered the submissions of the respective sides

and perused the records. There is no dispute about the fact that

the entire case of the prosecution with regard to the death of the

deceased is based on circumstantial evidence. The tests which

have been laid down by the Supreme Court with regard to the

circumstantial evidence must be fully satisfied before the

conviction and sentence of the appellant is upheld. Hereinafter,

we examine various facts and circumstances so as to see as to

whether the guilt of the appellant is proved beyond reasonable

doubt so as to uphold his conviction and sentence.

10. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC

79), it was laid down by the Supreme Court that when a case rests

upon circumstantial evidence, such evidence must satisfy the

following tests:

"(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(iii) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human

probability the crime was committed by the accused and none else; and

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

Keeping in view the aforesaid broad parameters which have

been laid down by the Supreme Court and reiterated by the

subsequent pronouncements including in Jagbir Singh's case

(supra), we proceed to see as to whether the complete chain of

events in the instant case is satisfied so as to uphold the conviction,

sentence of the appellant or whether the submissions which have

been made by the learned counsel for the appellant create a doubt

in the mind of the Court so as to give the benefit of the said doubt to

the appellant.

11. Strained relations between the appellant and the

deceased.

The case of the prosecution is that the appellant was having

strained relations with his wife namely Smt. Jitender Kaur. The

reason for having strained relations was given by the prosecution

that the appellant was in the habit of taking alcohol to which his

wife used to raise objections. This had become a source of

constant friction between the two. Further on account of

consumption of alcohol, the appellant also used to subject the

deceased to physical violence. In order to establish this fact, the

testimony of PW-1 Tara Chand who was related to the deceased is

important. He has categorically stated that the appellant used to

drink alcohol and used to indulge in physical violence against his

wife Smt. Jitender Kaur. He has also stated in his statement that

on one such occasion, he had brought the deceased to his

residence on account of this reason only. Subsequent thereto, the

father of the appellant came to the house of PW-1 Tara Chand and

took the deceased back. The witness was subjected to cross

examine by the appellant where he failed to elicit anything

worthwhile which would discredit the testimony of this witness with

regard to the factum of the appellant having strained relations with

his wife on account of his bad habit of consumption of alcohol. No

doubt this witness was declared hostile by the prosecution as he

did not support the prosecution case regarding the signing of

various documents to begin with. But in cross examination he

admitted that he had signed documents like seizure memo,

personal search memo, disclosure statement though he again

stated that only some of the documents were read over to him.

The witness is admittedly of advanced age and therefore cannot be

expected to remember the minute details. Some benefit has to be

given to the witness on account of his advancing age. The witness

has given his age as 72 and at such age a person could be hardly

expected to remember the minute details. Further there is also a

time lapse between recording his statement and testifying before

the Court which also contribute to such a loss of memory.

However, the testimony of this witness on core issue regarding

strained relations of the appellant and his deceased wife and

latter having been brought by PW-1 to his own residence once and

thereafter being taken by the father of the appellant remains

unshaken. The testimony of PW-1 Tara Chand is corroborated by

PW-2 and PW-3 who are the father and the brother of the deceased.

PW-2 Sh.Saroop Singh has stated that the appellant used to drink

alcohol and then beat his daughter. He had taken the deceased to

his native village also on 3-4 occasions and on some of these

occasions, the appellant brought the deceased back to Delhi with

the help of his relatives. In the cross examination, he volunteered

that on one particular occasion, the appellant beat his wife twice or

thrice in his presence only after drinking alcohol. PW-3 Sh.Jasbir

Singh brother of the deceased also made the statement on the

same lines and he refers to one specific incident when his mother

was also present who had taken the deceased to her maternal

Uncle's house at Delhi. This seems to be having a reference to the

deceased being taken to house of PW-1 Tara Chand which was

quite nearby to the residence of the appellant. He has also

admitted that a settlement thereafter arrived and the appellant had

taken back his wife. This witness was also cross examined by the

appellant. However, the testimony of these two witnesses have

also remained unassailed on this score.

As against this, the appellant has denied that he used to

consume alcohol or that he would subject his wife Smt.Jitender Kaur

since deceased to any physical assault after consuming alcohol.

But the version of the appellant hardly inspires confidence in the

light of the testimony of three witnesses namely PW-1, PW-2 and

PW-3. Therefore, the factum of the appellant having a strained

matrimonial relations with his wife deceased Smt. Jitender Kaur is

established beyond any pale of doubt. This is also established that

after consuming alcohol he would lose his senses and would

indulge in physical violence qua his wife. The deceased was

objecting to this habit of the appellant which was the source of

constant friction between the two. Obviously, this gave rise to an

occasion as well as the motive to the appellant to do away with his

wife. It is well reasonable and prudent to draw an inference that

the appellant had a definite motive to silence his wife permanently

as this was the constant source of friction. This is also an

important fact which forms one of the important sequences in the

entire chain of events to draw an inference that it was the appellant

and no one else who had the motive to kill his wife.

12. Death of the Deceased

It is not in dispute that the appellant was residing only in one

room at the address House No.E-1/220, First Floor, Madangir. It is

also not disputed by the appellant that on 9th October, 1997 in the

morning, he had gone to the residence of PW-6 Sh.Harbans Singh

and told him that he is leaving his son with him so that he could

play with the son of Sh.Harbans Singh as both of them were

studying in the same class. The appellant is alleged to have stated

to Sh.Harbans Singh PW-6 that he is taking his wife to the hospital

and that he would collect the child in the evening. PW-6 Harbans

Singh has stated that the appellant or his wife had not come to

collect his child in the evening. On the same day he gave a ring to

the father of the appellant who was living in Palam Village and

handed over the child to him. It is the case of the appellant that

when he came on the next date, he found that his wife has been

killed. The appellant also expressed his ignorance about the

factum of the room being locked as according to the case of the

appellant when he left his house, his wife was there in the room.

Let us test the statement of the appellant in the light of the

circumstances which have been established. The circumstances

which have been established are that the room was lying locked

had to be opened with the help of lock-smith PW-10 on 10th October,

1997. The dead body of the deceased had decomposed and bad

odour was emanating which lead to the calling of her relation PW 1

Tara Chand by the neighbours and the consequent lodging of FIR.

There was no evidence either of the room having been ransacked

or there being forced intrusion into the room inasmuch as there was

only one window having a grill which was found to be intact and the

room was lying locked from outside. If this factual position of the

scene of the crime is examined in the light of the statement of the

accused to the effect that when he left to drop his son at the house

of Sh.Harbans Singh, PW 6 his wife i.e. the deceased was alive.

The appellant was the last person to have seen his wife being alive.

Therefore, the onus was essentially on the appellant to discharge

as in what condition his wife was when he left and what were the

reasons which had necessitated for him to leave, what was the

reason for him to carry the key of the Lock in his pocket when he

specially knew that his wife is at home with her one leg under

plaster and the fact that when he will be back his wife will be at

home. As against this, the appellant took the keys of the lock with

him which was the circumstance which points the needle of

suspicion towards him. The appellant has admitted in his statement

under Section 313 Cr.P.C. the recovery of keys from his pocket

though the learned counsel for the appellant had disputed the

recovery of the same on the ground that the recovery of the same

does not find mention in the personal search memo. The

admission made by the accused in his statement recovery of the

keys from him is a fact which certainly lends credence to the

recovery as stated by PW-1Tara Chand from the appellant.


 Reliance is placed in this regard on Mohan Singh vs. Prem Singh          &

Another     AIR 2002 SC 3582.

There is something unnatural on the part of the appellant to

carry the keys with him when he knew that his wife is having one of

the feet plastered she would not be able to move and consequently

it was reasonable to infer that she would be available at home.

This fact accordingly also forms a part of the chain which goes

against him. PW-6 Sh.Harbans Singh has testified that the

appellant told him that he is taking his wife to the hospital and he

would collect his son in the evening while as in the statement under

Section 313 Cr.P.C. he takes the plea that he had gone to Haldwani

for the night and returned on the next day. The fact that one of

the leg of the deceased below the knee was under plaster, yet she

was able to walk was also a fact specially within his knowledge and,

therefore, he ought to have established it. On the contrary, the

appellant has taken a false and frivolous plea before PW-6 Harbans

Singh that his wife would come to collect the child by not disclosing

the factum of his wife being immobilized. From the above facts it

is fully established that the appellant is the person who saw his wife

last as being alive and after which she was found dead. The

appellant was carrying a key of the house while as he knew that his

wife will be available at home especially in the light of the fact that

one of her leg was under plaster. The appellant took a false plea

that he had gone to Haldwani. No clothes are carried by him even

for a change. All these facts have also been proved beyond any

reasonable doubt which make an prudent and reasonable person to

draw an inference that it was the appellant who had committed this

offence of murder.

13. Plea of Alibi

Further, the appellant took a plea of alibi but did not even

care to enter into the witness box or even produce any defence

witness to prove the same. No doubt the learned counsel has

relied upon a judgment of the Supreme Court in Narendra Singh's

case (supra). There is no dispute about the fact that despite the

plea of alibi on being raised even if it is not proved the burden of

proof remains on the prosecution. Further if any, doubt arises the

benefit of the said doubt is to be given to the accused. However,

the facts of that case are totally different and merely because the

appellant has raised the plea of alibi yet not proved or we are not

saying that this in itself is sufficient to establish the guilt of the

appellant. What we are stating is that after this plea of alibi is

raised and not proved it is certainly one of the circumstance which

is taken along with other host of circumstances clearly make any

reasonable person to draw an inference that it is the appellant who

has killed his wife.

14. Conduct of the Accused

a) The human conduct is unpredictable. The Supreme Court

in case titled Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990

SC 79) has also observed that in a given fact situation a particular

accused person may act in a manner in which a normal person

would not act but nevertheless it will be pertinent here to mention

that under Section 8 of the Evidence Act, 1872 both the previous as

well as the subsequent conduct of accused would be not only

relevant but admissible also. It is established from the testimony

of PW-1 Tara Chand, PW-2 Saroop Singh and PW-3 Jasbir Singh that

appellant had started taking alcohol after 4-5 years of the marriage

and that on account of his frequent consumption of alcohol, he was

ill treating his wife deceased/Smt. Jitender Kaur which resulted in

strained matrimonial relations between the appellant and the

deceased. PW-1Tara Chand although has been declared hostile

but has been very categorical in his statement to the effect that

almost a year prior to the incident, there was quarrel between the

appellant and the deceased Smt. Jitender Kaur who happened to be

his sister's daughter's daughter because of the former's habit of

consuming alcohol. As a consequence of this, he being the only

relation available in Delhi had got the deceased Smt. Jitender Kaur

to his residence in Masjid Moth which is hardly at a distance of 2-3

km. PW-1Tara Chand has also testified to the effect that after the

deceased came to his residence, she was permitted to go to her

husband's place only when her father-in-law and the appellant had

made entreaties to him and had assured him not only about the

good conduct of the appellant but also about the factum that he

would give up his habit of consuming alcohol. The testimony of

PW-1 Tara Chand has not been demolished on this core issue of the

strained matrimonial relations between the appellant and the

deceased on account of the frequent consumption of the alcohol by

the former and the fact that only a year prior to the incident the

deceased had been brought by him from the matrimonial home.

Merely on account of fact that PW-1Tara Chand has been declared

hostile does not mean testimony of this witness cannot be relied

upon. There is absolutely no justification for PW-1 Sh.Tara Chand

to testify falsely against the appellant. No doubt he is related with

the deceased distantly but he has hardly any personal axe to grind

against the appellant so as to falsely testify against him

complaining about his bad habits and ill-treating his wife.

Therefore, these facts clearly established that the appellant was

alcoholic which was the bone of contention between him and the

deceased. This fact is also corroborated from the testimony of

PW-2 Saroop Singh and PW-3 Jasbir Singh who were respectively

the father and the brother of the deceased. Their testimony also

has gone unshaken in the cross-examination. The aforesaid facts

clearly are part of transaction which show the conduct of the

appellant regarding his behaviour pattern qua the deceased.

b) The conduct of the appellant before the alleged time of

incident is also unnatural inasmuch as the case of the appellant is

that he had left his wife alive on 9th October, 1997 as he wanted to

go to Haldwani. It was for this purpose that he had left his son

aged around 3 ½ to 4 years at the residence of PW-6 Harbans Singh

so that his son can play with the son of Sh.Harbans Singh who were

classmates. It has also been stated by PW-6 Harbans Singh that

the appellant had told him that his wife would come to his house in

the evening to pick up the child. The appellant in the first instance

had admitted his statement that one of the legs of his wife below

the knee was under a plaster. It is not the case of the appellant

that despite the leg of the deceased being under a plaster, she was

in a position to walk so that she could have gone and collected her

son. The appellant also did not give any such suggestion to either

PW 6 Harbans Singh or to any other witness including the

Investigating Officer that his wife was in a position to walk despite

one of her legs being immobilized. Therefore, this concealment of

material fact show that he was trying to hide something. This is an

important piece of conduct of the appellant. As has been stated

herein above the conduct of the appellant taking a false plea of alibi

or even carrying a key of the lock when he knew that his wife was

going to be at home, when he comes back are also relevant factors

which are not only unnatural conduct but also, would make any

reasonable, prudent person to draw an inference against the

appellant. Even after the incident when he was arrested on 10th

October, 1997 he made a statement to that effect that he was

ignorant about the death of his wife Smt.Jitender Kaur. There is

nothing on record to show that the appellant had any sense of loss

or dejection which any normal person would have under such

circumstances. The appellant had an association with the

deceased for more than a decade. The most natural and probable

conduct of a person who would lose his wife would be one of

sorrow, dejection, sense of loss etc. but evidence has come on

record but this was conspicuous by its absence. This was totally

unnatural conduct on the part of the appellant and is also a

circumstance which militates against the appellant. This also

shows that the motive of the appellant was to silence her because

she was raising objection to the consumption of frequent alcohol by

the appellant.

c) One of the arguments which was advanced by the learned

counsel for the appellant was to the effect that the prosecution has

not examined the son of the appellant who was 3½ to 4 years old as

a witness. It was the son of the appellant, who was the best

witness to tell the truth as to what happened after the appellant

had left the house on 8th or 9th October, 1997. Neither his

statement under Section 161 Cr.P.C has been recorded by the

police nor has he been produced as a witness before the trial Court.

Therefore, an adverse inference should be drawn against the

prosecution on account of not having produced a witness who was

within their power.

15. We are of the view that no adverse inference can be drawn

against the prosecution on account of the son having not been

examined as a witness. Learned counsel for the appellant is

assuming and as if the appellant's son was the witness to the

gruesome commission of crime. According to the post mortem,

which took place on 12th October, 1997 at about 11.15 a.m., the

death of the deceased has taken place four days prior to the date of

the incident. Learned counsel for the respondent has cited an

authority to the effect that the body of the deceased had started

decomposing, the exact time of death given by the doctor who

conducted the post mortem examination could not be taken to be

as a correct one. This proposition of law is not disputed by the

learned counsel for the appellant but the fact of the matter remains

that the prosecution case is also to the effect that the death of the

deceased Smt. Jitender Kaur had taken place between the night of

8th - 9th October, 1997. The appellant's case is also to the effect

that on 9th October, 1997, he left his home in the morning for going

to attend some work outside Delhi. If that be so, it can safely be

presumed that at the time when the appellant left his residence, his

wife was alive, while as, this fact is not supported from the Forensic

record which is to the effect that death of the deceased was four

days prior to the date of conducting the post mortem. Therefore,

the death had taken place sometime either on 8th October, 1997 in

the evening or early hours of 9th October, 1997. The report of the

postmortem to the effect that the deceased had died four days

earlier and the fact that decomposition of the body had set in

clearly makes a prudent man to draw an inference that at the time

when the appellant left on 9.10.97 along with his son, the wife was

not alive. So far as the son of the appellant is concerned, he was

at the time of incident only of tender years that is of 3½ to 4 years.

It is totally a surmise or conjuncture that the appellant would

commit the offence while as the son was awake. In our view as the

son was of tender years and there was no evidence that he had

seen the incident therefore, the non-production of the son can by

no stretch of imagination be construed to be fatal to the case of the

prosecution. We feel that non-examination of the child by the

prosecution would not make us draw an adverse inference against

the prosecution. He could have been produced as a defence

witness by the accused if his testimony could have assisted the

accused.

16. Recovery of the cloth piece as a consequence of

disclosure

a) PW-15 SI Bir Singh after the arrest of the appellant

recorded his disclosure statement. The said disclosure statement

has been duly proved as Ex.PW1/3 which is also signed by

PW-1Tara Chand. In pursuance of this disclosure statement, the

appellant has taken the Investigating Officer to the place of

incident and shown them the place where the piece of cloth

Ex.PW1/7 was recovered. The said piece of cloth was having a

mark of MT 30 and was lying amongst or under the ruffles which

were scattered all around in the room while the dead body was

found lying. Therefore, this was also established beyond any

shadow of doubt that the appellant was in knowledge of the place

as well as the factum of having kept a piece of cloth Ex.PW1/7, in

the said room, where the dead body of his wife was lying. The

prosecution has proved photos of the deceased after the incident

which shows that the body of the deceased lay with the ruffles all

over in the room. PW-17 Dr.S.K.Gupta who conducted the post

mortem has also opined that the death of the deceased was by

strangulation. In addition to this there is a ligature mark on the

neck of the deceased. There is absolutely no reason not to rely on

the factum of disclosure statement having been made by the

appellant and thereafter getting the police party to a place where

he had hidden the said piece of cloth. The fact of knowledge of

the place where the piece of cloth bearing MT 30 is hidden, is also a

factor or circumstance which goes against the appellant. We are

not impressed with the submissions of the learned counsel for the

appellant to the effect that the said fact of the cloth lying amongst

the ruffles in the room in question was already known to the police

as a Crime Team of the police had visited the placed of incident.

We feel that by no stretch of imagination, the crime team could

have noticed the offending piece of cloth with which the deceased

was strangulated lying on the spot as it was clearly established that

so far as the dead body was concerned, the same was lying in the

room and was surrounded with number of ruffles and it was difficult

for anyone to pick up a particular piece of cloth and then to say that

this was the piece of cloth with which the lady was strangulated

unless and until the same was shown by the accused. Therefore,

we feel that the plea of the appellant that the factum of cloths

being known to the police in the room itself is untenable because

there were number of ruffles lying in the room and it was only at the

instance of the appellant that the offending one was recovered. In

State of H.P. Vs. Jeet Singh AIR 1999 SC 1293, it was held that there

is nothing in Section 27 of the Evidence Act which renders the

statement of the accused inadmissible if the recovery of the article

was made from any place which is open and accessible to others.

In our case also the place namely the room might have been

accessible to crime team or any other person but no one could have

taken out a piece of cloth with which the deceased was

strangulated unless and until it was known to a person because the

room was full of ruffles. The submission of the learned counsel for

the appellant that although the learned trial Court had noted the

recovery of the piece of cloth with which the deceased was alleged

to have been strangulated but yet it was not taken as a

circumstance against the appellant for proof of his guilt and rightly

so because it is a fact which was already in the knowledge of the

appellant and therefore, could not be rediscovered so as to make it

admissible under Section 27 of the Evidence Act. We do not agree

with this submission of the learned counsel for two reasons, firstly

the recovery of a piece of cloth was not rediscovered because even

though the crime team had visited but they could not notice the

cloth as there were ruffles lying around the body, secondly the

non-mention by the learned Trial Judge about this circumstance

seems to be only on account of inadvertent mistake and not

because of the reasons stated by the learned counsel. We are of

the view that the appellant had voluntarily made a disclosure

statement and it was within the knowledge of the appellant the

place where the piece of cloth was kept by him with which the

strangulation is purported to have been carried. The appellant led

the police party where the piece of cloth was got recovered.

These are also the factors which point towards the guilt of the

appellant.

17. Thus from the aforesaid evidence beyond reasonable doubt

the following facts are established:-

a) The appellant and the deceased were living together along with one of their sons who was of tender years of 3½ years in one room tenement in Madangir.

b) The appellant was an alcoholic because of which there were frequent quarrels between the appellant and his deceased wife Smt. Jitender Kaur.

c) On account of the alcoholism of appellant, there was matrimonial discord. The deceased wife had been taken on number of occasions by her father PW-2 to the native Village and once by PW-1 from her matrimonial home.

d) The father of the appellant had gone to the residence of PW-1 Tara Chand along with accused and made entreaties and assured him of his good conduct where upon the deceased was permitted to accompany the appellant back to his matrimonial home.

e) The factum of the deceased objecting to the consumption of alcohol by the appellant was motive for the appellant to silence her voice permanently because it was a constant source of conflict between the two.

f) The body of the deceased was recovered from the one room tenement where the deceased was left on 9th October, 1997 by the appellant who had allegedly left his son with PW-6 Harbans Singh on the pretext that he was going out of station or he was taking his wife for medical treatment while as this was only a concocting facts.

g) The appellant had taken a false plea of alibi that he had gone to Haldwani and had returned on the next day. He had not carried any briefcase so as to even carry a single set of clothes for a change.

Further the fact of going to Haldwani was a fact which was specifically within the knowledge of the appellant. The onus was on them in terms of Section 106 of Evidence Act to establish the same.

h) The room where the body of the deceased was recovered did not bear any sign of forced intrusion in the house as the grill on the only window was intact and the door was locked from outside.

i) The appellant was the last person to see his wife being alive when he is purported to have left the house.

j) One leg of the wife of the appellant below knee was under plaster yet she was able to walk was a fact that specially within the knowledge of appellant which fact has not been proved by discharging onus under Section 106 of the Evidence Act.

k) Since the wife of the appellant was alive when he left there was no justification for him to carry the key with him.

All these facts clearly which have established beyond any

shadow of doubt that if taken cumulatively, will establish that any

reasonable prudent man would draw an irresistible conclusion that

it was the appellant and appellant alone who had committed this

ghastly murder of his wife by strangulation and thereafter locked

the room. There is not even a single circumstance which in our

view is incompatible with the innocence of the accused, a benefit of

which can be given to the appellant.

As a matter of fact, the Hon'ble Supreme Court in a case

titled as State of Rajasthan Vs. Kashi Ram (2006) 12 SCC 254 has

dealt with a case of circumstantial evidence where the facts of the

case were almost similar to the facts of the present case. In the

said case, the following factors were established as a part of the

chain of circumstance which led to the conviction of the accused in

the said case:-

"1. Relation between the husband and wife were not cordial even after the seven years of marriage.

2. They were blessed with 2 daughters.

3. Deceased came to her maternal house due to frequent quarrels with her husband.

4. The main door of the house was locked at the time of the occurrence of the event.

5. The post mortem reports claims that the death of the deceased was caused due to the asphyxia.

6. The waist chord was found from the possession of the respondent.

7. They were last seen on Tuesday evening on February 3, 1998.

8. Keys of the locks put on the two doors were recovered from the possession of the respondent on February 18, 1998.

9. The trial court came to the conclusion that the only inferences that can be drawn from the proved facts and circumstances was the respondent after committing the murder of his wife and his two daughters locked the house and disappeared from the scene."

Our case is also almost akin to the same and we have noticed

hereinabove the various circumstances which have been

established beyond doubt in para16, which make any reasonable

prudent man to believe that it was the appellant and appellant

alone who has committed the murder of his wife and, therefore, we

uphold the conviction of the appellant for an offence under Section

302 IPC. So far as the sentence of the appellant i.e. life

imprisonment and a fine of Rs.10/- is concerned, we feel that the

trial Court has already awarded a lesser of two sentences which is

permissible for an offence under Section 302 IPC and accordingly it

does not call for any interference.

18. In view of the aforesaid discussion, the appeal of the