Sanjeev vs State
2009 Latest Caselaw 744 Del

*                    IN THE HIGH COURT OF DELHI

%                               Judgment reserved on : 20.2.2009

                                Judgment delivered on: 04.03.2009

+                                 CRL.A.761/2008

       SANJEEV                                       ..... Appellants
                     Through:     Mr.Mohit Mathur, Advocate with
                                  Mr.Vishwajeet Singh, Advocate.
                                        versus
       STATE                                         ..... Respondent
                     Through:     Mr.Pawan Sharma, Advocate.


CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH

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

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

3. Whether judgment should be reported in Digest?                 Yes

: PRADEEP NANDRAJOG, J.

1. By means of a telephone call received from an unknown

person, the police received information at 5.40 PM on 27.2.2001

about the death of a woman at House No.K-48 Krishan Vihar.

HC Bhura Singh PW-21, the duty officer at PS Sultanpuri,

recorded DD No.58-B, Ex.PW-21/A, noting the said information.

SI Ajay Solanki PW-22, and Const.Ashok Kumar PW-20, left for

the house at around 5.45 PM and found the dead body of a lady

on a cot inside the house. They learnt that the deceased named

Upma was married to the appellant about 7 months back. Sri

Krishan PW-11, a photographer was called, who took

photographs Ex.PW-11/1 to Ex.PW-11/3; negatives whereof are

Ex.PW-11/4 to Ex.PW-11/6, of the dead body. The dead body

was seized and sent to the mortuary of Sanjay Gandhi Hospital.

2. Unfortunately, SI Ajay Solanki did not bother to conduct

any proceedings at the spot in the form of summoning the

mobile crime team to lift chance finger prints etc. from the place

of the occurrence. He did not prepare a rough sketch of the

place of the occurrence. He did nothing at all and after sending

the body to the mortuary, went back to the police station

without attempting to inquire in the neighbourhood and try and

ascertain the whereabouts of any person who could throw light

on how Upma died.

3. Nothing happened on the 28th of February 2001. Nothing

happened on 1st of March 2001. On 2nd March 2001, Shri

S.C.Saluja PW-13, the Sub Divisional Magistrate of the area

recorded the statement Ex.PW-9/A of the father of Upma and

made an endorsement Ex.PW-13/B thereon and forwarded the

same for a FIR to be registered. The reason was that Upma's

father made a statement to the effect that the appellant and his

family members used to harass his daughter for dowry and that

his daughter had been killed by them. HC Shyam Sunder PW-

19, received the statement made by father of Upma and the

endorsement of the Sub Divisional Magistrate, and registered

the FIR Ex.PW-19/A on 2.3.2001.

4. On said date i.e. 2.3.2001, Dr. Komal Singh PW-10,

conducted the post-mortem of Upma at 2.30 PM and noted in

the post-mortem report Ex.PW-10/A that there were abrasions

on the upper and lower lip of the deceased. There were bruises

on the right forearm. There were four nail marks on the lateral

side on the right side of the neck as also two nail marks on the

left lateral side of the neck. The right upper cornex of the

thyroid was broken. He opined that the cause of death was

asphyxia due to throttling. He opined that the time of death was

about 72 hours prior.

5. Statements of Raj Kumar PW-1, the paternal uncle of

deceased Upma; Smt.Maharani PW-3, the mother of the

deceased; Smt.Urmila PW-5, the paternal aunt (chachi) of the

deceased; Shri Om Vir Singh PW-12, a cousin of the deceased

and Shri K.C.Dhima PW-8, a neighbour of the deceased were

recorded by the investigating officer. The family members of

the deceased informed the police that the appellant and his

family members used to harass Upma for dowry. K.C.Dhima PW-

8 informed the police that around 2.00 PM on 27.2.2001 he had

seen the appellant remove his wife to a hospital in a TSR.

6. Since the post-mortem report of the deceased clearly

showed that the deceased had died due to strangulation and it

was clearly a case of homicide; in view of the statements made

by the persons whose names have been noted in para 5 herein

above, a charge-sheet was filed indicting the appellant; his

sister Laxmi; her husband Rishipal; Narender the elder brother

of the appellant; his wife Suman; Devender the younger brother

of the appellant and Madan Kumar the brother of Rishipal as the

accused persons. The appellant was charged for the offence

punishable under Section 302 IPC. An alternative charge under

Section 304-B/34 IPC was framed against all the accused as also

a charge under Section 498-A/34 IPC.

7. At the trial, HC Bhura Singh PW-21 proved DD No.58-B,

Ex.PW-21/A. SI Ajay Solanki PW-22 and Const. Ashok Kumar PW-

20 deposed that on receipt of DD No.58-B they went to the

house and saw the dead body of Upma and seized the same and

sent it to the mortuary. Shri Krishna PW-11, proved the

photographs of the dead body taken by him. Dr. Komal Singh

PW-10, proved the post-mortem report Ex.PW-10/A. Shri

S.C.Saluja PW-13, the Sub Divisonal Magistrate of the area

proved the statement Ex.PW-9/A of father of the deceased

recorded by him and his endorsement Ex.PW-13/B thereon. HC

Shyam Sunder PW-19 proved the FIR Ex.PW-19/A recorded by

him on 2.3.2001.

8. Raj Kumar PW-1, the paternal uncle of the deceased Upma

deposed that Upma was married to Sanjeev in July 2000 and his

brother gave dowry articles according to his capability. That the

accused Laxmi, Rishipal, Suman, Narender, Devender and

Madan Kumar are residents of Sultanpuri. That they were the

relations of Sanjeev. That 1½ - 2 months after her marriage

Upma told him that the members of her husband's family were

harassing her, demanding more dowry. He went to see Upma

but was not allowed to meet her. All the accused persons told

him that he cannot meet Upma. He was insulted and was told

that a motor cycle ought to have been given in dowry. In lieu of

the motor cycle they demanded Rs.40,000/- in cash. He was

threatened that if by Holi festival needful was not done, Upma

would not live to celebrate Holi. That he had spent about

Rs.35,000/- to Rs.40,000/- on the marriage of Upma. That on

27.2.2001 somebody informed him over the telephone that

Upma had fallen from the roof. He and his wife went to the

house and some children told him that Upma had been beaten

and removed to Sanjay Gandhi Hospital. He went to the hospital

and saw the dead body of Upma. On being cross-examined, he

disclosed that a television, a fridge, cooler, bed, ornaments and

clothes as also cash were given in dowry; but admitted that no

receipts thereof were handed to the police. He denied the

suggestion that all the accused persons were living separately.

He denied that he was deposing falsely.

9. Suffice would it be to note that save and except deposition

about a demand for a motor cycle and Rs.40,000/-, PW-1 did not

depose of any other demand for dowry.

10. Smt. Maharani PW-3, the mother of Upma deposed that

Upma was married with Sanjeev in July 2000 and that they had

given her dowry articles. That on Rakshabandan day, she

noticed that an earring of Upma was twisted and on being

questioned Upma told her that her husband had beaten her and

had taken her jewelry. That her daughter informed her that

Sanjeev wanted money to start some business. That she did not

tell her husband about Upma's plight because of his ill-health.

That Upma told her that the accused used to demand dowry and

used to beat her. That 1½ months after Rakshabandhan, Raj

Kumar, the younger brother of her husband, told her that he had

given Rs.40,000/- to Sanjeev. That after 15 days thereof when

her husband went to the house of Sanjeev, he (i.e. Sanjeev)

demanded a motor cycle. Her husband gave his old scooter to

Sanjeev, who after using the same for a month returned the

scooter and demanded a motor cycle. That Sanjeev used to

beat her daughter after consuming liquor. That at the marriage

of the son of one Balbir Singh, which she had attended, after

consuming alcohol, Sanjeev gave beating to her daughter Upma.

That Sanjeev squandered the money given to him at the time of

marriage. That their request to Sanjeev to behave properly was

not heeded by him.

11. On being cross-examined she failed to disclose the

registration number of the scooter given to Sanjeev. She

admitted that her daughter and Sanjeev used to freely visit their

house. On being questioned as to who informed them about

Upma's death, she responded that a boy named Amit had come

to their house at 5.00 PM and had given them the information.

She corrected herself that Amit had told her that a telephone

call was received from Upma's matrimonial house. She stated

that when she went to the matrimonial house of Upma, accused

Laxmi and Suman met her. She stated that she could not tell

how much money was spent in the marriage of her daughter.

12. Urmila PW-5, deposed that Upma was the daughter of the

elder brother of her husband and was married to the appellant

on 10.6.2000. That in October 2000 Upma told her that her

husband and his relations i.e. the accused persons used to

demand money from her. That Upma used to constantly contact

her over the telephone and tell her that the accused persons

used to trouble her for bringing money from her parents. That

on 24.2.2001 she rang up Upma, but accused Madan Kumar did

not allow Upma to come on the line. With great difficulty Upma

came on the line and on hearing her voice started weeping,

saying that the accused persons were demanding money and

would kill her. At that, accused Suman snatched the receiver

from her hand. In cross-examination she admitted that her

statement recorded by the police under Section 161 Cr.P.C. does

not contain the statement that Upma had been making

telephone calls to her; that there was no mention of the

telephone call dated 24.2.2001, that there was no mention in

the said statement that the family members of appellant did not

permit Upma to speak to her and that when Upma did finally

speak to her, she said that she feared for her life.

13. Abalq Singh PW-9, father of Upma, deposed that his

daughter was married to the appellant on 10.7.2000 and that at

the time of the marriage there was no demand for dowry. That

the usual house hold goods, as per his financial condition, were

gifted by him to his daughter. That after 1½ months of the

marriage a demand for gifting one colour television and a fridge

was satisfied by him by gifting the same. That on 15.8.2000 i.e.

Rakshabandhan day, accused Sanjeev demanded a motor cycle.

He gave his scooter bearing No.HR-26-2905 to him telling him

that when his financial position would improve he would give a

motor cycle to Sanjeev. That his daughter told him that the

accused persons used to beat her for not bringing a motor cycle.

That Sanjeev used to consume liquor and thereafter used to

beat her. That she informed him that Sanjeev had started

gambling. That a few days before Dusshera festival Upma had

complained to him about ill-treatment. He took Dhruv Pal, the

mediator who had arranged the marriage, to the house of Upma

where all accused persons assured him in presence of Dhruv Pal

that his daughter would be treated with respect. That on

27.2.2001 he gave a telephone call at pay phone of the accused

persons and was informed that Sanjeev was not present in the

house. Tara wife of accused Madan Kumar responded on the

phone. Then, accused Suman came on the line and told him to

make a call later on. He made a second call which was

responded to by Tara, who told him that Sanjeev was not

present in the house. That his wife's sister informed him at

around 4 - 5 PM that Upma had died. He went to the house of

Upma and learnt that the police had taken the body of Upma.

He went to the police station and learnt that Upma had been

removed to Sanjay Gandhi Hospital. He went to the hospital and

saw the dead body of his daughter.

14. On being cross-examined he deposed that he selected

Sanjeev as the groom for his daughter as his family owned

properties and Sanjeev was trading in chemicals and had a

handsome income. He deposed that except for the dowry

demand pertaining to a motor cycle, no other demand was ever

raised. He deposed that he spent about Rs.1,50,000/- on the

marriage of his daughter and that he was indebted in the sum of

Rs.50,000/-, as on the date he deposed in Court i.e. 19.7.2002.

15. Shri Om Vir Singh PW-12, deposed that Abalaq Singh the

father of Upma was the husband of his maternal aunt and that

on 26.2.2001 he went to meet Upma and when he reached her

house he witnessed a minor altercation between Upma and

Sanjeev. All other accused persons were participating in the

altercation. When he enquired from Upma as to what was the

matter, she informed that the accused persons were harassing

her for dowry and that accused Narender wanted Sanjeev to be

married to the sister of Suman. On cross-examination he

admitted that he had not informed the police about having

visited Upma's house on 26.2.2001

16. K.C.Dhima PW-8, deposed that on 27.2.2001 he was

present at his house and about 2.00 PM saw appellant Sanjeev

carrying his wife Upma in a TSR, from his house to a hospital

and on making inquiry as to what had happened, Sanjeev told

him that he had returned home to take lunch and found Upma in

an unconscious condition, and that her earrings and ornaments

were missing and that he was carrying Upma to the hospital. He

deposed that Sanjeev was alone in the house at that time. On

being cross-examined, he deposed that all the accused persons

were residing separately in their own residences.

17. The appellant and other co-accused persons examined four

defence witnesses viz. Suresh Kumar DW-1, Dhruv Pal DW-2,

Balbir Singh DW-3 and Ashok Kumar DW-4.

18. Suresh Kumar DW-1 deposed that he was a neighbour of

appellant Sanjeev and on 27.2.2001 was working at the godown

behind the house of Sanjeev. He heard cries of Sanjeev and

rushed to his house. Sanjeev told him as to what had happened

to his wife. He, along with Sanjeev, took Upma to a hospital at

Budh Vihar. The doctor declared her dead. They came back

with the body of Upma. In the evening, the police came to the

house. He deposed that Sanjeev and his wife used to live alone

and that the other accused persons were residing at different

places.

19. On being cross-examined he stated that the houses of

other accused persons are within a radius of about 50 yds. from

the house of Sanjeev.

20. Dhruv Pal DW-2, deposed that he was the mediator and

had arranged the marriage of Sanjeev with Upma and that no

dowry was demanded at the time of the marriage. On being

cross-examined, he deposed that Sanjeev was not related to him

and that it was wrong that he was aware that Upma was being

harassed for dowry.

21. DW-3 Balbir Singh, the maternal uncle of the deceased

(Upma's mausa) deposed that marriage of Upma with Sanjeev

was solemnized in his house as he was having a government

accommodation and that after her marriage Upma used to visit

him and never complained of any harassment.

22. Nothing much turns on the deposition of DW-4 for the

purposes of this appeal as he has deposed that the accused

Rishipal was in his office from 11.00 AM to 6.30 PM on the day of

the incident. The reason is that all accused except Sanjeev

have been acquitted.

23. Acquitting all the accused of the charge under Section 304-

B IPC, the learned Trial Judge has held that the evidence on

record establishes that Sanjeev was residing alone with Upma

and that the post-mortem report clearly revealed that Upma

died a homicidal death. We note that Sanjeev's presence with

his wife Upma and no other co-accused being present in the

house has been used by the learned Trial Judge as an

incriminating circumstance against accused Sanjeev pertaining

to the homicidal death of Upma. To quote from the impugned

decision, in para 97 the learned Trial Judge has held:-

"It has been deposed by the DW that accused Sanjeev along with his wife was living in the house, whereas all other accused persons were residing at different places. Hence, it was for the accused to establish that he was not in the house and was present at some place from where he could not have come before 2.00 PM, to commit the crime".

24. Holding that the evidence establish that Sanjeev was

absconding and returning a finding that the said conduct was a

circumstance wherefrom guilt could be inferred; with reference

to the deposition of Upma's father Abalq Singh PW-9, the

learned Trial Judge has observed as under in para 100:-

"Abalq Singh has testified that on 27.2.2001, he gave telephone call at the pay phone of the accused persons and came to know that accused Sanjeev was not present in the house. The call was attended by Tara, wife of accused Madan Kumar. Initially, Tara told that Sanjeev was present at the house but subsequently she told that he was not present at the house. Similarly, Suman stated that Sanjeev was not present at the house. On asking, Abalq Singh again made telephone call and he was again told that Sanjeev was not present at the house. The sister of wife of Abalq Singh from DESU Colony, Najafgarh, Delhi informed them at about 4/5 PM that Upma had expired."

25. Discussing the charge against the accused persons for the

offence punishable under Section 498-A IPC, the learned Trial

Judge has noted that Abalq Singh PW-9 testified that at the time

of marriage no demand of dowry was made. Learned Trial Judge

has further noted that as per him he gifted a colour television

set and a fridge after 1½ months of the marriage. His wife

Smt.Maharani PW-3 never deposed to said fact but interestingly

Rajkumar PW-1 the paternal uncle of the deceased i.e. the

younger brother of Abalq Singh deposed that the television and

the fridge were gifted at the time of the marriage. With

reference to his testimony that he spent between Rs.35,000/- to

Rs.40,000/- on the marriage of Upma, the learned Trial Judge

has held that if this was true, it evidenced his active

participation in the marriage of his niece Upma and that the

conflicting statements of the family members viz. Abalq Singh,

his wife Maharani and that of Rajkumar did not inspire

confidence. Pertaining to the deposition of Smt.Maharani PW-3,

that on Rakshabandan day she noticed that Upma was wearing

twisted earrings and on enquiry Upma told her that the

appellant used to beat her and had taken her gold ornaments;

the learned Trial Judge has noted that she had not stated said

fact to the police when her statement was recorded. Pertaining

to the demand of a motor cycle or alternatively the sum of

Rs.40,000/-, the learned Trial Judge has noted the contradictions

in the statements of PW-1, PW-3 and PW-9 in paras 62 to 64 and

70 of the impugned decision which read as under:-

"62. The statement of PW-3 Smt.Maharani and PW-9 Ablak Singh are contradictory, as to what was told to them by Upma at the time of visit on the occasion of Raksha Bandhan, PW-1 Raj Kumar has claimed that about 1 ½ to 2 months of the marriage of Upma with accused Sanjeev, he received a telephone call from Upma and she told him that her husband and his family members were demanding more dowry and were harassing her. Raj Kumar visited the matrimonial house of Upma. The accused persons demanded motor cycle and Rs.40,000/-, which had not been given in the marriage. He sought time to fulfill the demand. The accused persons warned him that in case, the demand would not be met before Holi festival, then Upma would not be able to see Holi. The statement of Raj Kumar also does not corroborate the statement of Smt.Maharani, that at the time of visit on the occasion of Raksha Bandhan, the ear-rings of Upma were twisted. However, the statements of PW-1 Raj Kumar, PW-3 Smt.Maharani and PW-9 Ablak Singh co-relate the demand of motor cycle and a sum of Rs.40,000/- by accused Sanjeev. Ablak Singh has been cross-examined at length. From his cross-examination, accused Sanjeev and others have not been able to create a dent in the case of Ablak Singh, that he had supplied his old scooter to the accused, which was returned back in damaged condition. Ablak Singh has admitted that now, he has sold the said scooter and it is not in his possession.

63. PW-3 Smt.Maharani has testified that after 1 ½ months of the festival of Raksha Bandhan, her Devar (younger brother of the husband), Shri Raj Kumar arranged a sum of Rs.40,000/- and went to the house of accused Sanjeev and handed over that amount to accused Sanjeev. Raj Kumar returned back and told PW-3 that money had been given to accused Sanjeev. Raj Kumar has not deposed that he had arranged the amount of Rs.40,000/-, or that the same was given by him to accused Sanjeev at his house, or that on his return, he confirmed to PW-3 that the amount was paid to accused Sanjeev. Ablak Singh has also not testified that the amount of Rs.40,000/- was paid to accused Sanjeev by Raj Kumar, PW-5 Smt.Urmila, wife of Raj Kumar has not deposed that her husband ever told her that he had given Rs.40,000/- to accused Sanjeev.

Consequently, the statement of Smt.Maharani is unfounded and cannot be believed to hold that Raj Kumar had made payment of Rs.40,000/- to accused Sanjeev.

64. In spite of the fact that it has not been confirmed that Rs.40,000/- was paid to accused Sanjeev, the prosecution has brought evidence on the record in connection with the demand of dowry and harassment and torture caused to Upma. Ablak Singh made statement before the SDM on 2.3.2001. In that statement also, Ablak Singh has stated that at the time of marriage of Upma, there was no demand of dowry. After sometime of the marriage, the motorcycle was demanded. He was not having money to meet the demand and as such, he had given his old scooter, but it was returned back in damaged condition. The demand of motor cycle was continuously pressed and on that account, Upma was harassed. The complainant also came to know that accused Sanjeev Singh used to consume liquor and then, he used to beat Upma.

xxx xxx xxx xxx

70. The parents of Upma have deposed that the demand of motor cycle was raised by Sanjeev, whereas PW-1 Raj Kumar has deposed that at the time of visit to the matrimonial house of Upma, all the accused persons demanded motor cycle and sum of Rs.40,000/-. The statements of parents is to be believed about the raising of demand of motor cycle by accused Sanjeev and not by other accused persons. It is also corroborated by the complaint of Ablak Singh to SDM, wherein he has stated that the motor cycle was demanded and on that account, his daughter was harassed as he came to know later on that Sanjeev Singh used to beat Upma after consuming liquor. There is no allegation that other accused also used to beat Upma."

26. The learned Trial Judge has heavily relied upon the fact

that Abalq Singh, the father of the deceased, had deposed that

Dhruv Pal was the mediator who had facilitated the marriage

and that Dhruv Pal DW-2 had deposed that there were no dowry

demands and that none were ever brought to his notice. The

learned Trial Judge has further noted that Balbir Singh DW-3 the

maternal uncle of Upma (Upma's mausa) was the one at whose

house marriage of Sanjeev and Upma was solemnized and that

even he had refuted any demand for dowry.

27. The learned Trial Judge has accordingly held that the

prosecution could not establish the charge for the offence

punishable under Section 498-A IPC against the accused, save

and except Sanjeev. Pertaining to Sanjeev, the learned Trial

Judge has held that there is sufficient evidence to establish that

Sanjeev used to beat his wife Upma after consuming liquor and

that he was the only one who demanded a motor cycle as

dowry.

28. Convicting Sanjeev for the offence of murdering his wife

and for the offence punishable under Section 498-A IPC, learned

Trial Judge has enumerated the following circumstances in para

101 as under:-

"101.The prosecution has been able to establish the following circumstances:-

(i) Accused Sanjeev was married with Upma and both of them were living in House No.K-48 Krishan Vihar, Sultan Puri, Delhi;

(ii) After the marriage, accused Sanjeev started raising demand of dowry, including the

motorcycle. He caused harassment, torture and beatings to Upma to force her to bring dowry from her parents house;

(iii) Upma died to an unnatural death on 27.2.2001 around 2.00 PM. The Autopsy Surgeon has given the cause of death as asphyxia, due to throttling, produced by an assailant;

(iv) Presence of accused Sanjeev has been established at his house for taking unconscious Upma to the hospital in the presence of PW-8, K.C.Dhima and DW-1 Suresh Kumar. The doctor declared her brought dead;

(v) Accused Sanjeev has taken the plea that he had come to his house on 27.2.2001 at 2.00 PM to take lunch and found his wife Upma lying unconscious. The accused has failed to give explanation as to where he was present before allegedly coming to his house to take lunch. His plea of alibi has not been established;

(vi) The conduct of the accused in telling the PW- 8, that his wife was found lying unconscious and to DW-1 Suresh Kumar that "as to what had happened to his wife";

(vii) No evidence of presence of any other relative of accused Sanjeev at his house on 27.2.2001 before 2.00 PM or at the time of taking unconscious Upma to the hospital. The accused and his wife alone used to live in the house.

All the aforesaid circumstances have been confirmed and have completed a chain to infer the guilt of accused Sanjeev in causing the murder of his wife, Upma. The circumstances as brought on the record, do not point out towards the innocence of the accused."

29. At the hearing held on 20.2.2009, learned counsel for the

appellant did not make any submissions pertaining to the

conviction of the appellant, for the offence punishable under

Section 498-A IPC. The reason appears to be that there is

evidence against the appellant of beating his wife Upma

because he thought that by treating her with physical cruelty

her cries would compel her parents to satisfy his demand for a

motor cycle. Further, the appellant has already undergone the

sentence imposed for the offence punishable under Section 498-

A IPC i.e. to undergo RI for two years. The appellant has been in

jail for nearly seven years when the sentence was pronounced.

We note that the appellant has been in judicial custody for eight

years when the appeal was argued and probably for said reason,

the learned counsel for the appellant did not bother to trouble

himself pertaining to the appellant's conviction for the offence

punishable under Section 498-A IPC.

30. For the offence of having murdered his wife, we find that

the evidence against the appellant is his past conduct, i.e. the

threats to his wife, that if her parents did not give him a motor

cycle he would kill her, as also the evidence that Upma died

around 2.00 PM and that around said time the appellant was in

his house as deposed to by K.C.Dhima PW-8 and Suresh Kumar

DW-1. The learned Trial Judge has held that the explanation of

the appellant that he had returned to his house at around 2.00

PM to take lunch and found his wife in an unconscious condition

could not be accepted because the appellant has not proved his

whereabouts prior to returning home. Though, while

enumerating the incriminating circumstances against the

appellant, the learned Trial Judge has not noted the same, but

as noted herein above in para 24, in para 100 of the decision the

learned Trial Judge has noted that the family members of the

appellant gave evasive replies to the presence of the appellant

in the house on 27.2.2001. The same has been opined by the

learned Trial Judge as an incriminating conduct to inculpate the

appellant.

31. Pertaining to the opinion of the learned Trial Judge as

penned in para 100 of the impugned decision, we may note that

the learned Trial Judge has noted the inconsistencies and

improvements in the deposition of the relations of Upma while

evaluating their evidence pertaining to the offence under

Section 498-A of which all the accused were charged. The

learned Trial Judge has held that all the co-accused of the

appellant were residing in separate houses, and that the

deposition of Urmila PW-5 that on 24.2.2001, the co-accused

prevented Upma from speaking with her was unbelievable for

said reason.

32. If that be so, it is difficult to believe that the relatives of

Sanjeev could have at all given evasive response over the

telephone as claimed by Ablaq Singh, because their very

presence in the house becomes doubtful.

33. It is apparent that the relations of the deceased have

deposed falsely to implicate the co-accused and hence their

testimony has to be sieved carefully, to separate the grain from

the chaff.

34. The learned Trial Judge has found the conduct of the

appellant suspicious from the fact that he was seen removing

his wife to the hospital and he told DW-1 and PW-8 that when he

came to the house to take lunch he found his wife unconscious

and hence was taking her to the hospital.

35. Is it so?

36. We do not think so. Indeed, if a husband who returns to

the house to take lunch finds his wife not responding and

appearing to be unconscious, the immediate act of every

husband would be to rush her to the nearest hospital.

37. Suresh Kumar DW-1, has categorically deposed that he

rushed to the house of Sanjeev when he heard his cries and

assisted him in taking his wife to a hospital at Budh Vihar. We

note that the learned Trial Judge has relied upon the deposition

of DW-1, to return a finding, that the same evidences the

presence of the appellant in the house at around 2.00 PM.

38. The appellant has not denied his presence in the house at

2.00 PM. What he had stated to the Court, when examined

under Section 313 Cr.P.C., that when he returned to the house

at 2.00 PM to take lunch he found his wife not responding to

him.

39. The learned Trial Judge has failed to note that the

testimony of PW-8 and DW-1, wherein both have corroborated

each other, which evidences the conduct of the appellant to

summon a TSR and remove his wife to a hospital in full public

view. Far from being indicative of his guilt, the conduct of the

appellant probablizes his innocence for the reason if he was the

murderer of his wife his conduct would have been to hide

himself. What prevented him from simply fleeing from his house

and returning late evening? Would this not have been a good

alibi in light of the fact that the deceased had died around 2.00

PM? These are some of the questions which have neither been

posed, much less answered by the learned Trial Judge. The

conduct of the appellant, in taking the help of a neighbour and

rushing his wife to a hospital, shows that the appellant had

nothing to hide and he wanted medical treatment to be given to

his wife.

40. It is settled law that, in a case of circumstantial evidence,

the chain of circumstances must meet the twin requirement i.e.

point towards the guilt of the accused and rule out the

innocence of the accused. We need not note the plethora of

authorities where the Courts have noted that the circumstances

emerging from the evidence points towards the guilt of the

accused but do not rule out the innocence, and hence benefit of

doubt has to be given to the accused. Howsoever strong,

suspicion can never take the place of proof.

41. Though unfortunate, but the learned Trial Judge has

ignored the fact that for three days, no meaningful investigation

was conducted by the police. The FIR was registered on 2 nd

March 2001.

42. The appellant has been prejudiced by the said fact for the

reason, the post-mortem report of the deceased shows scratch

marks and nail marks on the neck. The best evidence, whether

incriminating or exculpatory, of the appellant was to collect the

nail-clippings from the hands of the appellant and subject them

to a forensic analysis. If the skin tissue of the deceased was

found present, it would have directly linked the appellant to the

crime; if absent, the same would rule out his involvement in the

crime.

43. We are conscious of the law, that a defective investigation

should not be a ground to let off an accused, provided there is

cogent evidence to establish the guilt. But, in the instant case,

the delayed registration of the FIR and the belated investigation,

as noted above, has caused a serious prejudice to the appellant

and cannot be ignored.

44. The twin circumstance of the appellant having a motive to

murder his wife, inasmuch as he was dissatisfied with the dowry,

and his presence in the house at 2.00 PM, in the facts and

circumstances of the instant case, are insufficient evidence to

convict the appellant for the offence of murdering his wife. The

explanation by the appellant that he returned to the house at

2.00 PM to take lunch cannot be brushed aside lightly. There is

no evidence led by the prosecution that the appellant never left

his house for his work. We note that the father of the deceased

has deposed that he finalized the matrimonial alliance of his

daughter with the appellant because his family owned

properties and the appellant was trading in chemicals and was

earning a handsome amount. It is apparent that the appellant

was a self-employed person. The appellant would be entitled to

a presumption that he left his house in the morning, as every

self-employed person would do, in connection with the affairs of

his business. We re-emphasize the fact, that the prosecution

has led no evidence that the appellant had remained present in

his house all throughout the day.

45. Pertaining to the reasoning of the learned Trial Judge, that,

the appellant could not prove that he had left the house in the

morning and had returned to the house at 2.00 PM i.e. has not

established the alibi and hence an adverse inference had to be

drawn, suffice would it be to note that in the decision reported

as AIR 1997 SC 322 Binay Kumar Singh vs. State of Bihar it was

observed that it is the basic law in a criminal case that the

burden is on the prosecution to prove that the accused was

present at the scene of the crime and had participated in the

crime. The burden would not be lessened by the mere fact that

the accused had adopted the defence of alibi. The plea of the

accused in such cases needs to be considered only when the

burden has been discharged by the prosecution satisfactorily, or

else, no such need arises. We may only add that the evidence

of last seen with the deceased soon before the dead body was

found stands on a different footing vis-à-vis evidence of seen at

the place of the crime soon after the deceased died. In the

decision reported as AIR 1972 SC 922 Khatri Hemraj Amulakh

Vs. State of Gujarat the mere presence of the husband in the

house soon after the death of the wife and there being no other

incriminating evidence was held to be insufficient to sustain the

finding of guilt returned by the Court of Sessions and affirmed

by the High Court for the reason there was no evidence of the

husband being in the house soon before the wife died.

46. If not more, the appellant would be entitled to the benefit

of doubt in the facts and circumstances of the case and as noted

above.

47. The appeal is partially allowed. The impugned judgment

and order dated 3.7.2008 convicting the appellant of the offence

of murdering his wife is set aside. The conviction for the offence

punishable under Section 498-A IPC is maintained. The

sentence imposed upon the appellant to undergo imprisonment

for life and to pay a fine for the offence punishable under

Section 302 IPC is set aside. The appellant is directed to set free

forthwith if not required in any other case.

48. Copy of this order be sent to the Superintendent, Central

Jail Tihar for compliance.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

March 04, 2009 Dharmender