Chand Singh vs State
2009 Latest Caselaw 2837 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                          Judgment Reserved on: July 22, 2009
                          Judgment Delivered on: July 27, 2009

+                          CRL.A.31/2007


        CHAND SINGH                           ..... Appellant
                 Through:        Mr. Sumit Chowdhary with
                                 Mr. Rahul Lather, Advocates.


                                 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

INDERMEET KAUR, J.

1. The unfortunate victim of this case, namely, Rajni had

succumbed to her injuries on the intervening night of 26-

27.2.2003. She had been married to the appellant Chand Singh on

11.3.1997. One child was born out of the wed-lock. Their

matrimonial house was situated in village Ghuman Hera, within the

jurisdiction of Police Station Jafarpur Kalan. During their

matrimony, the deceased was harassed by the appellant in

connection with demand for dowry; a case under Section 308/323

of the IPC and another case under Section 498-A/406 of the IPC

was registered on the complaint of the deceased against the

appellant. In 1999 the deceased had left the matrimonial home

and had lived at her parents' house for about two years; thereafter

disputes between the parties were settled and on the intervention

of the father of the appellant Ram Singh, Rajni had returned back

to her matrimonial home. The case under Section 498-A was

finally decided on 14.2.2003 in favour of the appellant on

statement given by Rajni that she was living happily in her

matrimonial home. In both the said cases the appellant had

ultimately been acquitted.

2. Investigation of this case had commenced on the recording

of D.D.No.5-A Ex.PW-6/A wherein it had been disclosed by an

unknown person that the appellant Chand Singh had given

beatings to his wife and has made her unconscious. This D.D. had

been recorded at 4.35 AM on the morning of 27.2.2003.

3. ASI Dharam Pal PW-16 on receipt of this D.D. along with

Const. Jitender PW-15 reached the spot i.e. the house of the

appellant. The dead body of Rajni was lying on a sofa in the back

portion of the house and there were injury marks on all over her

body. Blood stains were found on the quilt, gadda and other

articles. The appellant was not to be seen.

4. The rukka Ex.PW16/A was prepared and after endorsement

on the same, it was handed over to PW-15 for the registration of

the FIR. PW-10 H.C. Anita posted as Duty Officer in Police Station

Jafarpur Kalan had recorded the formal FIR Ex.PW-10/A.

5. Since the offence was heinous and related to the crime of

murder, the investigation of the case was handed over to Insp.

Ranvir Singh PW-20 who also reached the spot. The marriage

being less than seven years, the local Sub Divisional Magistrate

Shri Madhu Puvya PW-12 had also been summoned who conducted

the inquest proceedings. The crime team and the photographer had

also reached. Krishan Singh PW-14 took 14 photographs of the

spot, the negatives of which were Ex.PW-14/A1 to Ex.PW-14/A17

and their positives were proved as Ex.PW14/A18 to A-28. Site plan

Ex.PW20/A was prepared. From the spot, blood stained cement and

pieces of broken floor were taken into possession vide memos

Ex.PW-15/A and Ex.PW-15/B. The blood stained quilt and the

gadda were also seized and sealed in a pulanda vide memo Ex.PW-

15/C. The blood stained chunni, jampar (shirt) and the half wet

salwar of the deceased were also seized vide memo Ex.PW-15/G.

6. The appellant was not available at the spot for interrogation.

He was arrested on 27.2.2003 at 9 PM and his personal search was

conducted vide memo Ex.PW16/B. He made a disclosure statement

Ex.PW-16/B and pursuant thereto he had got an iron pipe

recovered from a wheat field nearby which was seized and sealed

with the seal of DPM vide memo Ex.PW-16/D. The blood stained

wearing clothes of the appellant were also seized and sealed with

the same seal vide memo Ex.PW16/E.

7. On the following day i.e. on 28.2.2003, the post mortem of

the deceased body was conducted by Dr.L.K.Barua, PW-8 who had

recorded 15 injuries upon the person of the deceased, all of which

were opined to be ante mortem and caused by a blunt object.

Opinion on the cause of death was shock and haemorrhage

resulting from the aforesaid injuries. The iron pipe which had been

recovered pursuant to the disclosure statement of the accused, was

sent to the doctor for subsequent opinion who had vide his report

Ex.PW-8/C opined that the injuries mentioned in the post mortem

report were possible by the said iron pipe.

8. It is relevant to state that PW-8 has not been cross-examined

on the cause of death as opined by him or that the injuries were not

ante mortem in nature. Thus, it can safely be presumed that this

was a case of homicide.

9. The FIR had initially been registered under Section 302 of

the IPC against the appellant Chand Singh alone. Thereafter the

statements of Kewal Singh PW-1 the father and Smt. Dhanpati PW-

2 the mother, were recorded by the SDM on 25.3.2003, i.e. about

one month after the date of the incident. Statements of the other

family members of the deceased i.e. Rohtas Kumar PW-3 and

Vijender PW-5 brothers of the deceased, Smt.Vedwati PW-4 and

Smt. Sushila Kumari PW-7 sisters-in-law of the deceased were

recorded by the Investigating Officer Inspector Ranvir Singh PW-

20 even later, i.e. 15 days after 25.3.2003 and this has come in the

categorical version of PW-20. Pursuant to the said statements, the

offences under Sections 304-B and 498-A of the IPC were added to

the FIR and the other family members of the accused namely Ram

Singh A-2 his father, Swaroopi A-3 his mother, Umed Singh A-4 his

brother and Manju A-5 his sister-in-law had also been arrested and

charge-sheeted.

10. The Trial Judge vide impugned judgment dated 23.11.2006

had, returned a finding of guilt against the appellant alone i.e. the

husband of the deceased and finding no evidence against the other

family members of the appellant i.e. A-3 to A-5, he had acquitted

them of the charges leveled against them. Proceedings against A-2

stood abated as he had died during the pendency of the trial.

11. The appellant had been convicted for the offence under

Section 302 of the IPC as also for additional offences under Section

304-B read with Section 498-A of the IPC.

12. The Trial Judge while acquitting A-3 to A-5 had held that the

statement of the parents of the deceased had been recorded after a

long and unexplainable time gap i.e. the incident having occurred

on 27.2.2003 and their statements having been recorded before the

SDM only on 25.3.2003 which throws shadows of doubt on their

version especially keeping in view the fact that the parents and

other family members of the deceased had admittedly reached the

place of incident on 27.2.2003 itself and they not having given any

incriminating statement to the SDM at that time when the SDM

was also admittedly present there, castes a suspicion on their

versions which were thus disbelieved.

13. We note that it is strange that the trial judge while

disbelieving the versions of the parents of the deceased i.e. PW-1

and PW-2 and holding that they had been recorded after an

inordinate delay had at the same time relied upon the same

versions and had used them to convict the appellant for the offence

under Section 304-B and 498-A of the IPC. Trial Judge had also

relied upon the statements of the other family members of the

deceased i.e. PW-3, PW-4, PW-5 and PW-7 to nail the appellant

which had been recorded even later i.e. around 10.4.2003.

14. We note that this is a fallacious and illegal approach of the

principles to be followed on the evaluation and appreciation of

evidence; the same evidence which had been rejected qua A-3 to A-

5 has been used as incriminating against A-1 when the ground for

rejecting this evidence was the long and unexplainable delay in

recording the said statements. This inordinate delay had also to be

answered qua the role of A-1. Trial Court has gravely erred in

using the same evidence against A-1 which had been rejected qua

A-3 to A-5. Besides, if the offence was proved to have been

committed by the appellant, where was the scope to bring in the

offence punishable under Section 304-B IPC.

15. It is thus clear that the conviction of the appellant under

Section 304-B and 498-A of the IPC is unwarranted and cannot be

sustained, it is accordingly set aside.

16. The learned counsel for the appellant has argued that this is

admittedly a case of circumstantial evidence and there was no eye-

witness. The prosecution has not been able to establish any

circumstance of the last seen theory, in the absence of which it

cannot be presumed that the appellant was in the matrimonial

home at the time when the incident had occurred. It is argued

that the defence of the appellant all along has been that he was a

taxi driver and he had gone to Gurgaon to ply his taxi and it was

only when he returned, he learnt about the incident of his wife

having been murdered; he had himself informed the police; this

was a case of robbery and the robbers had ransacked his house

and committed murder of his wife. It is argued that the plea of

alibi set up by the appellant has been established by a

preponderance of probabilities and all witnesses of the prosecution

had been given suggestions to the said effect; the trial judge has

committed error in ignoring the defence of the accused. It is

argued that the prosecution has not been able to establish all the

links in the chain of circumstances to hold the accused guilty and

as such he is entitled to benefit of doubt and a consequent

acquittal.

17. Admittedly the appellant Chand Singh and the deceased

Rajni had been living in their matrimonial home of village Ghuman

Hera where the incident had occurred. Ex.PW-6/A DD No.5

recorded at 4.35 AM on 27.2.2003, which was the first information

received in PS Jafarkalan about the incident clearly recites that

appellant Chand Singh had inflicted injuries upon his wife and had

made her unconscious. This document has been proved in the

testimony of PW-6. This witness has not been cross-examined; the

recital in this document which clearly names Chand Singh as the

offender who had inflicted injuries upon his wife is, thus, admitted.

18. In his statement under Section 313 of the Cr.PC in answer of

query No.15, the appellant has stated that he was present at the

spot at the time when the SDM had come. In response to the query

No.42 he has stated that he had gone to Gurgaon at the time of

incident and when he returned back he saw his wife Rajni lying in a

pool of blood having a number injuries on her person and he

himself had informed the police about the incident. Further, as the

police had not lodged any complaint, he had gone to the police

station where he had been detained and falsely implicated in the

present case as the SHO had the enemical relations with him.

Further, he had learnt that robbers had come to his house in the

previous night and killed his wife. He pleaded innocence.

19. The answers given by the appellant to these queries in his

statement under Section 313 of Cr.PC are clearly contradictory and

in conflict with one and another. At one time it is stated by the

appellant that he was present at the spot when the SDM had come

but in the same breadth he has stated that he was at Gurgaon at

the time of incident and when he returned back he saw his wife

lying in a pool of blood in an injured state. PW-12 the SDM had

come to the spot at about 10.30-11 AM on 27.2.2003. The appellant

has been arrested at 9 PM on 27.2.2003. This is evident from the

arrest memo Ex.PW-16/B and the said document has not been

challenged. The inquest proceedings had been completed by noon

and thereafter the dead body has been sent to the mortuary under

the supervision of PW-15 Const. Jitender. PW-15 has stated in his

cross-examination that he had left the spot with the dead body at

11.30 AM on 27.2.2003. How in these circumstances the accused

could have seen the dead body of his wife lying in a pool of blood

when he returned back in the late evening of 27.2.2003 is not

answered by him; these contradictory and conflicting stands

clearly show the falsity of the plea sought to have been set up by

him.

20. The appellant had examined DW-1 and DW-2 to establish his

defence and to sustain his plea of alibi. DW-1 Naresh Kumar was

his uncle. As per his version he had heard screams emanating from

the house of the appellant in the early morning hours at 2-2.30 AM

on 27.2.2003; he had however gone to the house of the appellant

only at 6.30 AM on the following morning. Admittedly, even after

he came to know about the murder of the wife of his nephew he did

not inform the police about the incident; no complaint about the

robbery or the ransacking of the house had also been reported.

21. DW-2 Suraj Prakash was also a relation of the appellant. He

has deposed that the wife of the appellant had been killed by

robbers and he had been informed about this by DW-1 Naresh. As

per his version he had also heard screams coming from the house

of the appellant at about 2.30 AM on 27.2.2003 and he went to

check the house of the appellant when on the way he met DW-1

who informed him that wife of Chand Singh had been murdered.

22. Both these versions are diametrically opposed to one another

and neither can draw support from the other. Defence of the

appellant is sham.

23. Further, it is relevant to point out that none of the witnesses

of the prosecution have specifically been cross-examined on this

defence propounded by the appellant that his house has been

ransacked by robbers on the previous night or that they had

assaulted his wife and killed her or that he had gone to Gurgaon at

the relevant time. No complaint or written document to this effect

had been penned by the complainant in this regard. A vague

suggestion had been given to PW-20 Insp. Ranvir Singh that the

appellant has been falsely implicated as he had made a complaint

against him in the court of the Magistrate.

24. In these circumstances, in our view, the Trial Court had

rightly rejected this plea of alibi which the appellant had tried to

set up which is essentially a question of fact. This plea besides

being contrary and conflicting and the appellant himself shifting

stand as to whether he was present at the spot at the time of the

incident or whether he was in Gurgaon plying his taxi at the

relevant time; further that when he returned back he saw the dead

body of his wife lying in the room is contrary to the record which

evidenced that the dead body had already been removed to the

mortuary in the morning at 11.30 AM. The appellant had come

back to his house in the late evening of 27.2.2003; his arrest memo

recorded the time as 9 PM; no cogent explanation had also been

furnished by the appellant as to how he gained the information

about the entry of the robbers in his house in the previous night; as

to from which point the robbers had entered the house when there

was no evidence of any forced entry; or the details about the

articles stolen from his house. All these factors clearly negative

this plea of the appellant. Adverse inference has to be drawn

against the appellant for setting up a fictitious defence and

fabricating evidence to establish his plea of alibi which is

apparently false; such a conduct is indicative of his guilty mind; it

is a relevant fact under Section 8 of the Evidence Act.

25. In a case of circumstantial evidence the onus is always on the

prosecution to prove that the chain is complete and infirmity or any

lacuna in the version of the prosecution cannot be cured by a false

defence or plea. The burden of proof is always on the party who

asserts that the existence of any fact, which infers legal

accountability. In order to justify the inference of guilt the

inculpatory facts must be incompatible with the innocence of the

accused and incapable of explanation, upon any other reasonable

hypothesis than that of his guilt.

26. Time and again, it has been enunciated by the Supreme

Court that if an offence takes place inside the privacy of the house

where the husband and the victim wife are by themselves; the time

of offence is in the middle of the night or in the early morning

hours when normal human conduct presupposes the parties to be

sleeping or being together in the matrimonial home; there being no

evidence of any forced entry into the house; wife having been

found dead the following day in abnormal circumstances; the

husband having disappeared from the scene; in such circumstances

if the husband puts forward a plea of alibi, it would be incumbent

upon him to prove it by positive evidence. No doubt, weakness or

falsity of a plea of alibi is not a ground to hold him guilty.

However, Section 106 of the Evidence Act prescribes that when

any fact is especially within the knowledge of any person, the

burden of proving that fact is upon him. The initial burden is upon

the prosecution but there is a corresponding burden on the inmate

of the house to give a reasonable explanation as to how the crime

was committed and in the absence of any such explanation or an

explanation which is contrary or false to the initial evidence sought

to be taken up by the inmate an adverse inference for making such

a false and contrary statement has to be drawn against such an

inmate. This is upon a co-joint reading of Section 106 and Section

114 of the Indian Evidence Act.

27. This court has ignored the evidence of the close relations of

the deceased, namely, PW-1 to PW-5 and PW-7 for the reasons as

discussed supra. The appellant has however in his statement

under Section 313 of Cr.PC, admitted that a case under Section

308 of the IPC and thereafter another case under Section 498-A of

the IPC had been registered against him on the complaint of his

wife and in both the said cases he had been acquitted. This throws

a reflection on the relationship between the parties. The appellant

and the deceased did not have a cordial or happy married life. In

fact there was acrimony brewing between the parties. This had led

the deceased to make complaint twice in the police station against

her husband. The appellant had not forgotten his grievances

against his wife; he has nurtured the desire to revenge them.

Motive, in these circumstances has been probabilized by the

prosecution.

28. After the arrest memo of the appellant on 27.2.2003 and

pursuant to his disclosure statement, he got an iron pipe recovered

from the nearby fields which has been taken into possession vide

document Ex.PW-16/D. This document had been prepared by

PW16 and attested by PW-20 as well who had reiterated this

version on oath. No discrepancy has been elicited in their cross-

examination. This iron pipe was the weapon of offence and it has

been established by the subsequent opinion of the doctor PW-8

who vide his report Ex.PW-8/C on the examination of iron pipe had

opined that the two elevated rings at both ends 5 ½ inches away

could be weapon which had led to be resultant injuries on the

person of Rajni.

29. The clothes of the appellant as also the clothes of the

deceased had been seized from the spot and this has come in the

categorical version of the investigating officer PW-20. These blood

stained clothes of the appellant had been taken into possession

vide memo Ex.PW-16/E which included one shirt, one vest and one

jacket. No suggestion has been given to PW-20 that these clothes

were not of the appellant or they have been falsely planted upon

him. These blood stained clothes were subsequently sent Central

Forensic Science Laboratory for opinion which vide its report ex.PX

and PY had opined that Ex.P-8 i.e. the vest of the appellant was

stained with blood group A which was also the blood group of the

deceased Rajni.

30. Prosecution has been able to establish that the appellant was

nursing a grudge against his deceased wife for having implicated

him in two cases i.e. one under Section 308 and second under

Section 498-A of the IPC. He was seeking vengeance. He was

alone in the matrimonial home on the intervening night of 26-

27.2.2003 with the deceased besides their infant child of three

years. They were admittedly living by themselves in the rear

portion of the house. There is no evidence of any forced entry into

the house. The appellant has not been able to give any plausible or

reasonable explanation of his absence from the house from the

time of the offence up to his arrest at 9 PM on 27.2.2003; his false

alibi and contrary pleas in defence evidence his guilt. The opinion

given by the doctor who had conducted the post mortem of Rajni

established that the iron pipe which the appellant had got

recovered could be the weapon which had caused injuries on her

person leading to her death. The blood stained vest of the

appellant having blood group A also matched the blood group of his

deceased wife. All the links in the chain of evidence point to the

appellant as the guilty offender.

31. There is no infirmity in the judgment of the trial court and

calls for no interference. The appeal is without any merit. It is

dismissed.

(INDERMEET KAUR) JUDGE

(PRADEEP NANDRAJOG) JUDGE

July 27, 2009 rb