Kishan Singh vs State
2010 Latest Caselaw 574 Del

R-51

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                           Date of Decision: 2nd February, 2010


+                           CRL. APPEAL NO.330/2005

        KISHAN SINGH                               ..... Appellant
                  Through:         Ms.Poornima Sethi, Advocate

                                   versus

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


        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT

     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. (Oral)

1. Vide DD No.96-B at the midnight; time being 12:40

midnight of 15th and 16th March 2003, the duty constable at PS

Gokul Puri noted that information was received through police

control room that it was informed about a lady having

committed suicide at Shiv Vihar, 33 Road Som Bazar, Near

Chuna Bhatti.

2. ASI Darshan Kumar PW-10 along with Const.Ayaz

Khan PW-19 left for the spot and at the matrimonial house of

the appellant and his wife found the dead body of the wife of

the appellant lying between 2 cots, on the floor.

3. The dead body was seized and sent to the mortuary

of GTB Hospital. Making an endorsement beneath the copy of

the DD entry, FIR for offence of murder was got registered.

4. Returning back to the spot where the crime was

committed, the crime team was summoned. SI Rohtash

Kumar PW-11 from the crime team could not lift any chance

fingerprints. Const.Rattan Singh PW-6 a photographer was

summoned who took 8 photographs Ex.PW-6/1 to Ex.PW-6/8.

5. On 17th March 2003, Dr.Gaurav Vinod Jain PW-11,

conducted the post-mortem on the dead body and noted

ligature marks at the level of thyroid cartilage. The ligature

marks were deep and prominent on the front and the left side

of the neck. The marks got fainter on the right side and at the

back. The overlying skin was found parchnentised. Bruises

were also found on the left side of laryngeal. Internal injury

showed charring and blackening of esophyagus. The trachea

contained blood. Stomach showed charring of walls, corrosion

and perforation. Cause of death noted was asphyxia caused

by ante mortem compression of neck by a ligature. It was

opined that the corrosive poisoning would have also been

sufficient to cause the death which was due to asphyxia. The

report Ex.PW-11/A was prepared.

6. Rajesh Kumar Sharma PW-7 informed the

investigating officer that the appellant had come to his shop in

a nervous condition in the midnight of 15th and 16th March

2003 and told him that his wife had hanged herself and that he

gave said information to the police. His statement under

Section 161 Cr.P.C. was recorded the same night.

7. The appellant was found missing and as per the

arrest memo Ex.PW-14/4 was arrested on 17th March 2003. He

made a disclosure statement Ex.PW-14/J to Insp.Sumer Singh

PW-14 who took over the investigation after FIR was registered

and pursuant thereto got a rope Ex.P-2 recovered which was

seized as per memo Ex.PW-14/K, stating that he had

strangulated his wife with the rope.

8. The rope Ex.P-2 was sent to Dr.Gaurav Jain for

opinion, who vide report Ex.PW-11/B opined that the ligature

marks on the neck of the deceased could be possible when she

was strangulated with the rope Ex.P-2.

9. Needless to state, the appellant was charge-

sheeted for the offence of having murdered his wife. The

prosecution sought to nail his guilt by proving that the

deceased was the wife of the appellant and the place where

she was murdered was the single room tenement in which the

appellant and his wife resided and the appellant absconding

after telling Rajesh Kumar Sharma PW-7 in the middle of the

night that his wife had committed suicide. The recovery of the

rope Ex.P-2 was also pressed in aid with reference to the

opinion Ex.PW-11/B. Lastly, motive for the crime was sought

to be established through the testimony of the brothers of the

deceased.

10. It is apparent that the most incriminating evidence

against the appellant would have been the testimony of Rajesh

Kumar Sharma PW-7. But, he turned hostile. While deposing

in Court he stated that at the midnight of 15 th and 16th March

2003 some persons knocked at the door of his house and

asked him to make a telephone call. They spoke to the police.

On being declared hostile and cross-examined by the learned

APP, Rajesh Kumar Sharma denied that the appellant had

come to his shop in a nervous condition or that the appellant

told him that his wife had hanged herself and that he spoke to

the police. Confronted with his statement Ex.PW-7/A (portion

A to A) where it was recorded that he had told the police that

in the middle of the night the appellant came to his shop in a

nervous condition and told him that his wife had hanged

herself and at his asking he informed said fact to the police,

Rajesh Kumar Sharma denied having made any such

statement.

11. Bir Singh PW-4 brother of the deceased threw light

on the maltreatment of his sister at her matrimonial house.

Siya Ram PW-5 another brother of the deceased corroborated

Bir Singh. The police officers deposed about recovery of the

dead body of the wife of the appellant from her matrimonial

house in the intervening night of 15th and 16th March 2003 and

that the appellant was absconding and was arrested in the

evening of 17th March 2003.

12. Thus, the only incriminating evidence which could

be proved at the trial against the appellant was:-

A. The deceased was the wife of the appellant and the

place of the crime was the single room matrimonial house and

there was no evidence of anyone breaking into the house.

B. The probable time of the crime was around 12:00

midnight, a time when a husband is expected to be in the

matrimonial house.

C. Appellant absconding from his house and being

apprehended in the late evening of 17th March 2003.

D. Lastly, recovery of a rope Ex.P-2 pursuant to the

disclosure statement of the appellant and the opinion Ex.PW-

11/B of Dr.Gaurav Vinod Jain PW-11, to whom the rope was

sent for opinion the opinion being that the ligature marks on

the neck of the deceased could possibly be caused by the use

of the rope Ex.P-2.

13. The defence of the appellant that he had spent the

intervening night of 15th and 16th March 2003 in the house of

his brother-in-law was rejected by the learned Trial Judge as

the same was held to be an afterthought and with no reasons

given as to why he spent the night in the house of his brother-

in-law. We may note that the appellant has not examined his

brother-in-law as a defence witness.

14. Learned counsel for the appellant concedes that the

place where the deceased was killed happened to be her

matrimonial house. Counsel further concedes that the

deceased died around midnight of the intervening night of 15th

and 16th March 2003 and that the post-mortem report

conclusively establishes that either before strangulating her to

death, acid was poured into the mouth of the deceased or that

acid was poured down the gullet of the deceased after she was

strangulated i.e. in any case it was a case of murder.

15. It is urged that from the said two facts and the fact

of the appellant not being seen in his house at best can be

treated as highly suspicious of the involvement of the

appellant in the crime but cannot be said to attain the level

required of proof i.e. of a prudent person concluding qua the

guilt of the appellant.

16. Learned counsel for the appellant has over-

simplified the incriminating circumstances against the

appellant. Let us list the same.

17. The incriminating circumstances are:-

(i) Proved through the testimony of the brothers of the

deceased the fact that there was matrimonial discord between

the appellant and his wife and hence the motive.

(ii) The likely time of death of the deceased is

midnight, a time when husbands are normally expected to be

in the house. The place of death is the matrimonial house.

(iii) There is no evidence of an outsider breaking into

the house.

(iv) Appellant stating that he left and spent the night in

the house of his brother-in-law, a fact not proved. Coupled

with the fact that the appellant claims to have returned home

in the evening of 16th March 2003. His conduct of not

enquiring in the neighbourhood as to where his wife was. If he

returned to his house as claimed by him, fellow residents in

the neighbourhood would certainly have told him that the

police has recovered the dead body of his wife the previous

night and in said circumstance the natural conduct of the

appellant would be to go to the police station and find out as

to what had happened. The appellant did not do so.

(v) Appellant absconding and being arrested in the

evening of 17th March 2003.

(vi) Howsoever little may be the incriminating value of

the recovery of the rope Ex.P-2 pursuant to the disclosure

statement of the appellant, the same being the possible

weapon of offence has also to be taken note of.

18. Read cumulatively, we see no escape from the

conclusion that the appellant, proved to be having a motive for

the crime and his conduct of absconding coupled with a false

defence that after he spent the night in the house of his

brother-in-law he returned to his house the next day, we are

satisfied that the learned Trial Judge has arrived at a correct

conclusion.

19. Before concluding we note that apathy for the girl

child and the women in India is resulting in continued murder

of wives in their matrimonial homes by their husbands. As in

the instant case, where we find Rajesh Kumar Sharma PW-7

turning turtle, it has to be noted that neighbours are not

coming forward to help the police.

20. Thus, where the offence pertains to the wife being

the target and the place where the crime has been committed

is the matrimonial house and especially where the time of the

crime is such that a husband is expected to be in the house,

the conduct of the husband is the only substantial evidence

left before the Court and said conduct would be determinative

of the guilty mind of the husband.

21. The importance of the house not being broken into

and the claim of the husband that he spent the night

elsewhere has to be considered with reference to the normal

conduct of a lady who has to sleep alone in her house. Surely,

she would secure her safety by properly latching the door of

her house so that no outsider can easily intrude into the

house. If there is no evidence of a forcible entry into the

house, it is obvious that somebody who had a friendly entry in

the house, after committing the crime has run away. The

explanation of the husband of alibi has to be carefully

analyzed and as in the instant case if the husband claims to

have returned the next day to his house but does not report to

the police or enquire from his neighbours as to what has

happened to his wife and simply walks away and is arrested

the next day, such conduct is highly inculpatory of a guilty

mind. It shows the attempt to flee from justice.

22. We find no merit in the appeal.

23. The appeal is dismissed.

24. Since the appellant is in jail, copy of this order be

sent to the Superintendent, Central Jail, Tihar to be made

available to the appellant.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

February 02, 2010 mm