Ramesh Kumar @Rameshwar vs State
2009 Latest Caselaw 2822 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Judgment Reserved on : 22nd July, 2009
                            Judgment Pronounced on: 24th July, 2009

+                           CRL.A. No.304/2001


       RAMESH KUMAR @RAMESHWAR                 ..... Appellant
                Through: Mr.L.K.Upadhyay, Advocate
                         Mr.Devesh Vikram Shukla, Advocate
                         Mr.Sandeep Chauhan, Advocate.

                                  versus

       STATE                                   ..... Respondent
                       Through:   Ms.Richa Kapoor, APP.


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                Yes

     3. Whether the judgment should be reported in the
        Digest?                                        Yes

PRADEEP NANDRAJOG, J.

1. The appellant has been convicted for the offence of

having murdered his wife.

2. At the hearing of the appeal, the learned counsel for the

appellant did not dispute that the wife of the appellant was

brutally murdered in her matrimonial house in the intervening

night of 30th and 31st March 1997; the fact that she was

murdered is evidenced by the post-mortem report Ex.PW-10/A

as per which the deceased had received 8 injuries, of which,

injury No.1 was caused by a hard blunt force and the

remaining were caused by a sharp edged weapon. Further, it

was not disputed by learned counsel for the appellant that the

deceased died due to injury No.4 which had cut the neck of the

deceased and that the said injury by itself was sufficient in the

ordinary course to cause death. It was further admitted that

there is no evidence of any forced entry into the house or of

the presence of any other family member in the house when

the wife of the appellant was murdered.

3. To put it pithily, the contentions urged by learned

counsel for the appellant centered on the issue: Whether from

the evidence on record a finding of guilt could be returned

against the appellant?

4. The learned Trial Judge has returned a finding of guilt on

the basis of four circumstances against the appellant. The

same are:-

a. That the post-mortem report of the deceased

conclusively established a case of homicide.

b. The place where the deceased was killed was the

matrimonial house of the deceased.

c. The appellant was absconding and said conduct of

absconding was suggestive of the guilt of the appellant.

d. A knife, a darat (straight sickle) and a darati (curved

sickle), Ex.P-12, Ex.P-13 and Ex.P-14 recovered pursuant

to the disclosure statement of the appellant as also a

kurta Ex.P-15 and a pyjama Ex.P-16 recovered pursuant

to the disclosure statement of the appellant were stained

with human blood and the blood on the pyjama, on

reaction, revealed it to be of group 'A' which was the

blood group of the deceased; and hair recovered from

the darati was similar to the hair of the deceased in

morphological and microscopical characteristics.

5. It was urged at the hearing of the appeal that the

recoveries of Exs.P-12 to P-16 were from an open field and no

public witness was associated with the recovery and hence the

recoveries were highly tainted. It was further submitted that

mere presence of human blood on four articles recovered and

presence of human blood of group 'A' from the fifth was not

conclusive of the fact that the said blood was that of the

deceased. Pertaining to the forensic examination of the hair of

the deceased and the hair found on the darati, learned counsel

urged that in the absence of a DNA analysis it could not be

said with certainty that the hair recovered from the darati was

that of the deceased. Pertaining to the circumstance that the

deceased was found murdered in her house, learned counsel

urged that there was no evidence that the appellant was seen

in his house in the intervening night when his wife was

murdered. On the contrary, learned counsel urged, that the

testimony of DW-1 established that the appellant stayed in the

house of his uncle Jaipal DW-1, in the intervening night of 30th

and 31st March 1997. Thus, it was urged that firstly there was

evidence of the appellant not being in his matrimonial house in

the night when the murder took place; alternatively it was

urged that in the absence of any evidence led by the

prosecution that the appellant was seen in his house in the

intervening night when the murder took place, from the sole

circumstance of the appellant's wife being murdered in her

matrimonial house, no inference of guilt could be drawn

against the appellant. With respect to the circumstance of

absconding, learned counsel urged that the testimony of DW-1

established that the appellant was not absconding and that

prior to the night when his wife was murdered the appellant

was with DW-1 and lived with him till 1st April 1997 and left in

the evening of said day to go to his house.

6. To appreciate the reasoning of the learned Trial Judge

and the challenge thereto, a brief resume of the evidence

brought on record may be penned.

7. DD No.9, Ex.PW-7/A was recorded by the duty constable

at police post Kapashera under the jurisdiction of PS Najafgarh

at 8:35 AM on 31.3.1997 that a wireless message has been

received from the police control room informing that a murder

has taken place in a house in village Amrahi and that blood

was flowing out.

8. SI Lalit Mohan PW-7 and HC Kailash Chand PW-6 were at

the police post. They left for the village and took along with

them a copy of DD No.9. Inspector Mahesh Kumar PW-13 was

posted as the Addl. SHO at PS Najafgarh. Said information was

conveyed to him. Even he left for the village. All the three

police officers reached the village. Outside the house of the

appellant a crowd had gathered. The grill door and the

wooden door of the house were locked and blood was flowing

out. The locks Ex.P-1 and P-2 were broken and along with a

chain Ex.P-3 were seized as recorded in the memo Ex.PW-7/B.

Entry was made in the house. Nobody was present in the

house. The dead body of the wife of the appellant was inside

the room. She was brutally murdered. Pieces of broken glass

bangles Ex.P-5 and strands of human hair Ex.P-7 as also a pair

of ear rings Ex.P-8 were seen on the floor. The glass bangles

were seized as recorded in the memo Ex.PW-7/D. Strands of

hair were seized as recorded in the memo Ex.PW-7/E and the

ear rings were seized as recorded in the memo Ex.PW-7/G.

Three parcels were prepared and sealed at the spot. There

was blood on small pieces of stone in the room. The stone

pieces Ex.P-5 were seized as recorded in the memo Ex.PW-7/D.

A shirt Ex.P-9 of a child having blood stains was seized as

recorded in the memo Ex.PW-7/H. A chunni Ex.P-4 was seized

at the spot as recorded in the memo Ex.PW-7/K.

9. HC Jagdish PW-3, a photographer was summoned. He

took photographs Ex.PX-1 to Ex.PX-14 of the dead body.

10. Inspector Mahesh Kumar PW-13 recorded the statement

Ex.PW-4/A of Brahm Prakash, the brother of the deceased who

resided in a village nearby, namely, Jharoda Kalan and had

reached the spot. As per the statement he stated that the

appellant was demanding money and that since he did not pay

the money, he suspected that the appellant had murdered his

sister. After making an endorsement Ex.PW-13/B, Inspector

Mahesh Kumar got the FIR registered.

11. The dead body of the deceased named Santosh was sent

to Subzi Mandi mortuary where Dr.K.L.Sharma PW-10

conducted the post-mortem and prepared the post-mortem

report Ex.PW-10/A recording therein that the deceased had 8

injuries of which 7 were caused by a sharp-edged weapon of

offence and that injury No.4 which had cut the neck was

sufficient in the ordinary course to cause death. After the

post-mortem the doctor handed over the blood sample of the

deceased on a piece of gauze to the investigating officer.

Relevant would it be to note that the knife, the darat and the

darati recovered by the investigation officer at the instance of

the appellant were sent to Dr.K.L.Sharma for his opinion on

28.4.1997; opinion being whether the injuries on the body of

the deceased could be caused by the said three articles. He

gave his opinion that injury No.4 could be caused by the

darati; injury No.1, 2 and 3 could possibly be caused by the

knife and injury No.5, 6 and 7 could be possibly caused by the

darat.

12. Satbir Singh PW-1, a villager residing in the village

Amrahi told the investigation officer, as recorded in his

statement under Section 161 Cr.P.C. that around 12:00

midnight he had seen the appellant leave his house in a

perplexed state of mind.

13. The appellant was apprehended on 2nd April 1997 and

was interrogated. His confessional-cum-disclosure statement

Ex.PW-7/N was recorded by Inspector Mahesh Kumar in

presence of SI Lalit Mohan and HC Kailash Chand PW-6, as per

which he stated that the kurta and the pyjama which he was

wearing when he committed the offence as also the knife,

darat and darati used by him to commit the crime were hidden

by him and he could get the same recovered. Thereafter, he

led the police officers to Gauda Farm House, Old Pochan Pur

Road and from within the bushes (lying concealed) got

recovered the knife Ex.P-12, the darat Ex.P-13, the darati Ex.P-

14, the kurta Ex.P-15 and the pyjama Ex.P-16. The said

articles were taken into possession as recorded in the seizure

memo Ex.PW-7/P (pertaining to Ex.P-12, Ex.P-13 and Ex.P-14)

and Ex.PW-7/Q (pertaining to Ex.P-15 and Ex.P-16) sealed and

deposited in the malkhana.

14. Along with Ex.P-12 to Ex.P-16, the various articles seized

from the room where the deceased had been killed as also her

blood sample was sent to the serologist and for forensic

examination of the hair found sticking on the darati with

reference to the strands of hair Ex.P-7. As per the report

Ex.PW-11/B it was opined that the hair recovered from the

darati were similar to the hair Ex.P-5 in their morphological

and microscopical characteristics. It was further opined that

the blood group of the deceased was 'A' and that human blood

of same group was detected on the pyjama Ex.P-16 and that

human blood was detected on the knife Ex.P-12, the darat

Ex.P-13, the darati Ex.P-14 but group thereon could not be

detected. Similar was the report qua the kurta Ex.P-15.

Human blood was detected on the glass bangles, bunch of hair

and stone pieces recovered from the room and the ear rings

recovered from the room. Human blood was detected on the

shirt and the chunni recovered from the room. The blood

group, being 'A', was detected on the chunni, pieces of glass

bangles, the shirt and the stone pieces. The blood group could

not be detected on the other articles.

15. In view of the submissions made by learned counsel for

the appellant which have been noted by us in para 5 above,

we need not trouble ourselves by noting the testimony of the

police officers pertaining to registration of the FIR and the

conduct of officials who were associated with the safe custody

of the various articles seized/recovered during investigation as

also the evidence of police officers who took the articles seized

from the room where the crime was committed and articles

seized during investigation to the CFSL laboratory and re-

deposited the same in the malkhana after they were examined

by experts. We note that no allegations of tampering have

been made in the instant case.

16. A very vital witness of the prosecution namely PW-1

Satbir Singh resiled from his statement recorded by the

investigating officer, of having last seen the appellant leaving

his house at around 12:00 midnight and being in a perplexed

state of mind. However, it would be important to note that he

deposed: "I also knew the deceased Santosh, who was wife of

accused Ramesh. She died about 2 ½ - 3 years ago. I

identified the body of deceased Santosh in the dead house,

Delhi. When I had seen the body of Santosh then the accused

Ramesh was absconding from his house. We searched him in

his relation but could not trace him out". We may note that

Satbir has not been cross-examined with respect to said

testimony of his, which has obviously gone unrebutted.

17. We may also note that SI Lalit Mohan PW-7 and Inspector

Mahesh Kumar PW-11 have deposed of having apprehended

the appellant from Shahbad Railway Crossing on 2.4.1997. We

note that a bald suggestion has been made to both police

officers that the appellant voluntarily went to the police station

on 2.4.1997 when he learnt about his wife having died and

wanted to enquire from the police as to what had happened.

We may also note that when he was examined under Section

313 Cr.P.C., the appellant stated: "After coming back from my

mama's house at late night on 1.4.1997 I got to know about

the murder of my wife and on next day on 2.4.1997 I myself

went to concerned police station and asked the police official

present in PS regarding the murder of my wife. The police

officials arrested me there in the thana and nothing was

recovered from me".

18. The mama i.e. the maternal uncle in whose house the

appellant claimed of having stayed in the intervening night of

30th and 31st March 1997 was examined as DW-1. He deposed

that the appellant was his nephew and had stayed in his house

in the intervening night of 30th and 31st March 1997 and had

left his house in the evening on 1.4.1997.

19. On being cross-examined, Jaipal DW-1, said that he did

not know the name of the wife of the appellant nor he was

aware as to how many children were born to the appellant and

his wife.

20. The learned Trial Judge has held that it was doubtful

whether Jaipal was a relative, much less the maternal uncle of

the appellant. We concur with said view taken by the learned

Trial Judge for the reason as per Jaipal he is the maternal uncle

of the appellant. He is not a distant relative. Surely, a

maternal uncle would remember the name of the wife of his

nephew and would also know the number of children born to

his nephew. It is clear that Jaipal has deposed at the behest of

the appellant and that the testimony of Jaipal is not even worth

the paper on which it is typed. We hold that the appellant has

not been able to successfully prove alibi for the reason his sole

witness to establish the same is a worthless witness and so is

his testimony.

21. As noted above, the appellant claims to have left his

uncle's house for his house in the evening of 1.4.1997. The

distance from the house of Jaipal to the village of the appellant

where the appellant resided, as deposed to by Jaipal is 65 km.

Obviously, having left the house of his uncle in the evening of

1.4.1997, travelling whether by road or by rail, the appellant

would have reached his village by late evening or early night.

In fact, as noted above in para 17 the appellant claims to have

reached his house late night. If this was so, the natural

reaction of the appellant would be to immediately go to the

police station and enquire about the investigation pertaining to

his wife's death because when the appellant reached his house

he would not have found his wife and the fellow villagers

would certainly have told him that his wife was found

murdered and the police has removed her body. The appellant

has done nothing of the sort.

22. It is obviously a false defence that the appellant went

voluntarily to the police station on 2.4.1997. The reason for

the false defence is that the appellant was arrested on

2.4.1997 and he wants to project his custody with the police as

not being the result of his being arrested but on his voluntarily

going to the police station. In this manner, the appellant

desires to explain that he did not abscond.

23. With reference to the testimony of PW-1 we have noted

that the appellant has not challenged his testimony pertaining

to the appellant absconding and not being found in the house

of his relatives.

24. We concur with the view taken by the learned Trial Judge

that the evidence on record establishes that the appellant was

absconding from his house and said act of absconding is

incriminatory against the appellant as was the view taken in

the decisions reported as AIR 1971 SC 1050 Matru Vs. State

and AIR 1971 SC 2156 Raghubir Singh Vs. State. We clarify

that mere absconding by itself would not be enough to sustain

a finding of guilt. But, the act of absconding is a relevant

piece of evidence to be considered along with other evidence

and that its incriminatory value would depend on the

circumstances of each case.

25. Pertaining to the recovery of Ex.P-12 to Ex.P-16, merely

because a public witness was not associated with the recovery

does not render untruthful the testimony of the police officers

viz. SI Lalit Mohan and Inspector Mahesh Kumar who have

proved the information given by the appellant which led to the

recovery of the said articles. The recovery memos Ex.PW-7/P

and Ex.PW-7/Q pertaining to the said articles show that each

one of them was not visible to the naked eye and was hidden

in the bushes and the appellant himself retrieved the same

from within the bushes. Thus, we hold that the recoveries are

not tainted and inspire confidence because but for the

appellant the Investigating Officer could not have laid his hand

thereon. Human blood being detected on all the exhibits with

further fact of blood group being detected as 'A' on Ex.P-16,

which was the blood group of the deceased, are facts which

are relevant and incriminatory, albeit with minimal weightage

to be given to them. It is settled law that issue of what

weightage has to be given to a piece of evidence is distinct

from the issue whether the evidence is relevant, admissible

and incriminatory. Similarly, same would be the position with

respect to the FSL report Ex.PW-11/B as per which hair

recovered from the darati were similar to the hair Ex.P-5.

Though not conclusive evidence that either the blood on the

pyjama recovered at the instance of the appellant or the hair

on the darati recovered at the instance of the appellant were

positively those of the deceased, the report is suggestive of

the possibility of the same being the blood and the hair

respectively of the deceased and in relation to the weightage

to be given, same is determinative of a lesser degree of

inculpatory evidence requiring less weightage to be given to

said evidence.

26. It is not in dispute that the place where the deceased

was murdered was her matrimonial house. Notwithstanding

the fact that there is no evidence that the appellant was last

seen by anybody in or around the house in the intervening

night when the deceased was murdered, it still remains a fact

that the wife was murdered in her matrimonial house and that

there is no evidence that any stranger or an outsider made a

forcible entry into the house. As noted by us, the house was

locked from outside when the police reached and the locks had

to be broken open. If the appellant was not in the house, his

wife who was alone in the house would have certainly locked

the same from within before she slept in the night. In said

eventuality the assailant would have had to force his entry into

the house.

27. If a housewife is murdered inside her matrimonial house

and there is no evidence of a forced entry inside the house and

the time of the murder is night time and if the husband is not

able to satisfactorily explain his being absent from the house,

it would constitute an incriminating circumstance of very high

inculpatory value against the husband.

28. The trinity of circumstances; of the deceased being

murdered at her matrimonial house; forced entry into the

house being ruled out; and the conduct of the husband

absconding are sufficient to reach to a conclusion of guilt qua

the husband.

29. Unfortunately for the prosecution, the brother of the

deceased namely Brahm Prakash resiled from his statement

Ex.PW-4/A pursuant whereto the FIR was registered. The

result is the prosecution not being able to prove the motive.

But, it is settled law that even in case of circumstantial

evidence, where generally proof of motive becomes a fairly

incriminating circumstance, absence of proof of motive

becomes irrelevant where the strength of other circumstantial

evidence is sufficient wherefrom a conclusion of guilt can be

drawn.

30. As held in the decision reported as AIR 2004 SC 3249

Narender Singh vs. State of Punjab strict proof is required to

prove the plea of alibi. In the decisions reported as 1971

Cri.L.J. 1764 Mohinder Singh vs. State of Punjab and ILR 1972

Cut.1181 Hadibandhu Jali vs. State as also 1954 Cri.L.J. 1303

Madhuwa Pyarelal Kurmi vs. State of V-Pra where a defence of

alibi utterly breaks down, it is a strong inference that, if the

prisoner was not in fact where he says he was, then in all

probability he was where the prosecution says he was. In the

decision reported as 1996 Cri.L.J. 244 (Del) Kuldeep Sharma

Vs. State it was observed that the disappearance of the

accused after the occurrence is a relevant circumstance which

in the absence of any plausible explanation can be taken into

consideration as conduct. Indeed, where an accused attempts

to create false evidence to prove alibi the same is strong

evidence to show that he was conscious of some great danger

impending and that he was actuated by a strong desire to

escape. The mental condition of a person is a fact under

Section 3 of the Evidence Act. In the decision reported as

2003 (9) SCC 86 Babudas Vs. State of M.P. it was held that a

plea of false alibi, though by itself cannot be the sole link or

the sole circumstance based on which a conviction can be

sustained, but certainly is a link in the chain of circumstances.

We may lodge a caveat here. Where the defence of alibi is not

proved due to insufficiency of evidence, such an inference

need not be drawn. But where it stands established that the

defence of alibi is predicated on false evidence, said fact would

be relevant as the conduct of the accused to bring on record

evidence favourable to him; which evidence is false. The legal

principle being, that conduct of an accused is relevant and

admissible evidence under Section 8 of the Evidence Act.

Where the accused tries to shield himself by producing false

evidence, the very production of false evidence is indicative of

a guilty mind. With respect to the application of this principle

of law, it is necessary to highlight that DW-1 who claims to be

the maternal uncle of the appellant, by being ignorant of the

family of the appellant, in that, not even knowing the name of

the wife of the appellant or the number of children born to the

appellant, shows that he is not the maternal uncle of the

appellant. It is not a case of defence of alibi failing due to

insufficiency of evidence but is a case where the plea of alibi

has failed due to false evidence.

31. We concur with the reasoning of the learned Trial Judge

that the circumstance of the wife of the appellant being

murdered inside her matrimonial house; there being no forced

entry into the house rules out the hand of any outsider; the

appellant absconding from his house till he was arrested, the

recoveries made pursuant to the disclosure statement of the

appellant and the post-mortem report of the deceased and the

opinion of the doctor who conducted the post-mortem as also

the report of the serologist and forensic analysis are a chain of

circumstances wherefrom it can safely be said that the

appellant is the murderer.

32. In Babudas's case (supra) contradictory and inconsistent

stand taken by an accused was held to be akin to false

answers given and providing another link in the chain of

circumstances against the accused. In the instant case the

appellant, while attempting to prove alibi (which has been

found to be false) stated that he returned to his house late

night on 1.4.1997 and himself went to the police on 2.4.1997

to enquire about the murder of his wife. As held above, by so

stating, the appellant was not only trying to prove alibi but was

also attempting to cast a doubt on his being apprehended as

claimed by the prosecution on 2.4.1997. While giving said

explanation the appellant has spun a web around himself,

which has trapped the appellant, for the reason, as held by us,

it is a most unnatural conduct for a husband to return home

late in the night and find his wife missing; the first reaction,

which would be the normal reaction of the husband would be

to immediately report the matter to the police and not weight

for the morning. The falsity of the version of the appellant

supplies another ring in the chain of incriminating

circumstances against him.

33. We find no merit in the appeal which is dismissed.

34. The appellant is on bail. His bail bond and surety bonds

are cancelled.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE JULY 24, 2009 Dharmender