Laxman vs State
2011 Latest Caselaw 5210 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                               Decided on: 24.10.2011

+                                    CRL.A. 152/1998

       LAXMAN                                                              ..... Appellant
                                     Through: Sh. Sumeet Verma, Amicus Curiae.
                      versus

       STATE                                                                ..... Respondent

Through: Sh. Sanjay Lao, APP.

CORAM:

       MR. JUSTICE S. RAVINDRA BHAT
       MS. JUSTICE PRATIBHA RANI

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

2.     To be referred to Reporter or not?          YES

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


       MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)
%

1. This Appellant, Laxman (hereafter referred to by his name) impugns a judgment and order dated 11.08.1998 in S.C. No. 142/1994, by which he was convicted for committing offences punishable under Sections 302 and 309 IPC. For the offence under Section 302, he was sentenced to undergo life imprisonment and fined a sum of ` 1,000. In default of payment of fine, the convict would further undergo Rigorous Imprisonment for 2 months. For the offence under Section 309, he was sentenced to undergo imprisonment for 6 months.

2. The prosecution allegations were that on 10th December, 1991, Smt. Veena (hereafter called "the deceased") was stabbed to death by Laxman, her husband. He thereafter allegedly stabbed himself in an attempt to commit suicide. Laxman was taken to Hindu Rao hospital by

Crl. A.152/1998 Page 1 ASI Mahabir (PW 16) where he was admitted as an unknown person. He was examined by the Doctor G.C. Sharma (M.L.C. Ex PW 18/A). He had suffered 9 injuries inflicted by a sharp edged weapon. He was discharged on 30th December, 2011; he was arrested on the same day.

3. The cause of death of the deceased as ascertained by the doctor L.T. Ramani (PW 19), who conducted the post-mortem (through report (Ex PW 19/A)) was hemorrhagic shock caused due to the injuries. The doctor found 19 external injuries on the body of the deceased caused by a sharp edged weapon. It was also stated that 5 injuries i.e. No. 5,7,8,10,11 were individually sufficient to cause death in the ordinary course of nature. The uterus was also enlarged and contained a female fetus. The knife (Ex. P-1) seized at the spot was examined by him and he opined that the injuries found on the deceased were possible with the knife. According to the prosecution, Laxman and the deceased married each other in March, 1991. However, for a period of approximately a month prior to the incident, the deceased was living separately from Laxman. The prosecution alleged that Laxman used to beat up the deceased after consuming alcohol and when the situation became unbearable, the deceased‟s father Giarsi Ram (PW-1) took her back home to his home.

4. It was alleged that in the morning of the fateful day, Laxman had gone to his father-in- law‟s house to ask his wife (the deceased) to return home with him. PW-1, the father-in-law refused to agree to this step, due to the fear of further harassment. Thereafter the deceased‟s parents left the house for some work, leaving behind Laxman with the deceased and her sister Angoori. Angoori(PW-2), and Giarsi Ram (PW-1), and a neighbour, Laxman Dass (PW-12) were interrogated, during investigation, and their statements recorded. After completion of the process, Laxman was charged for committing the said offences; he claimed to be innocent. The case went to trial. After considering the testimonies of prosecution witnesses, and the materials placed on record, the Trial Court convicted Laxman, for the offences, and directed him to undergo imprisonment, and pay fine, in the manner described in a previous portion of this judgment.

5. The Trial Court‟s findings of conviction are based on the circumstantial evidence that the appellant and deceased were in a room which was bolted from inside and from where no ingress and egress was possible. The impugned judgment held that the depositions of Angoori(PW-2), Giarsi Ram(PW-1) and Laxman Dass(PW-12) revealed that the room was

Crl. A.152/1998 Page 2 broken open by force, with the deceased lying dead and the appellant was in an unconscious condition with 9 stab wounds. The court also relied on the deposition of PW-2 Angoori Devi that she heard screams, and went behind the room, and observed from an opening -the Jharokha, that Laxman stabbed his wife, repeatedly, and later stabbed himself, and collapsed.

6. Mr. Sumeet Verma, learned Amicus, argued that the appellant had come to take back his wife, and emphasized that the relations between Laxman and Veena were cordial and that she was interested in returning to the matrimonial home. However his father-in-law refused to agree, since he did not want it. This had even resulted in frequent quarrels between him and his father-in-law. The Amicus contested the conviction and sentence of Laxman, and argued that he (the appellant) was given something mixed with drugs or sedatives, by his mother-in- law due to which he became unconscious. He claims to have regained his consciousness in the hospital itself. This has been stated by the appellant in his statements under Section 313.

7. Counsel submitted that the Trial Court fell into error in not seeing that the chain of circumstances had not been established beyond doubt, nor had each circumstance been proved beyond reasonable doubt, in order for a conclusion that the Appellant alone and none else could have authored the crime. The circumstances, which the prosecution failed to prove, according to counsel, were:

1) Whether the appellant and deceased were present at the house at the given time;

2) Whether the room in which the crime took place was bolted from within;

3) Whether there is a possibility of any ingress or egress from the room with the door being bolted;

8. It was argued that the Trial Court fell into error in believing the prosecution‟s case that the appellant and the deceased were even present in the room at the time of the offence or whether the room was locked from within. The conviction of the appellant rests solely on the basis of the testimony of Angoori who had contradicted her stance with respect to many facts in her Examination-in-Chief and Cross Examination. It was submitted that ASI Mahabir (PW

16), the first policeman to reach the spot, stated in his cross examination that no one at the spot told him the name of the Appellant. When he arrived he saw a crowd outside the room and found Laxman and the deceased lying in the room. Veena was already dead while

Crl. A.152/1998 Page 3 Laxman was unconscious. This is corroborated with the fact that the appellant was admitted in Hindu Rao hospital as an unknown person as per M.L.C. Ex PW 18/A. ASI Dharambir (PW-

15) who was the second policeman at the scene of offence stated in his cross examination that he met Angoori at the scene of the offence. He had reached there after the appellant had been taken to the hospital. He further states that Giarsi Ram and Laxman Dass arrived at the scene after arrival of the IO. It is stated that the IO had come after the Rukka had been sent for the registration of the case. According to him the IO arrived at around 2:45 to 3:00 PM. It was argued that these testimonies made the presence of Angoori, Giarsi Ram or Laxman Singh at the scene of occurrence highly improbable. Thus, the chain of events is broken, since no witness is present whose testimony could be relied upon to prove that the deceased and appellant were in one room which was bolted from inside.

9. Counsel urged that the identity of the person who broke open the door is also not ascertainable. In this scenario Angoori, Giarsi Ram or Laxman Ram cannot be said to be eyewitnesses. Here, learned counsel highlighted the contradictions between the testimonies of PW-2 and PW-12; whereas the former claimed that PW-12 had broken open the door, that witness himself did not say so. The testimony of PW-15 also proved that Giarsi Ram (PW-1, the deceased‟s father) reached the spot later.

10. Learned counsel submitted that the material on record showed that the deceased‟s blood group was O, whereas that of Laxman was „A‟. However, the FSL report PW-20/K revealed that the knife was smeared with „O‟ group blood, as were the blood stained cotton and blood stained gauze. The blood on the clothes of the deceased, on the other hand, such as Salwar (Parcel 3b); Gown (parcel 5c); kurta (Parcel 5d); Gudri (Parcel 5e) as well as those of the Appellant Laxman (Pant and shirt) were „A‟ group blood. If in fact the deceased was stabbed repeatedly first, after which Laxman stabbed himself, it was impossible for the knife to contain the deceased‟s blood, as it was found by the FSL (Ex. PW-20/K). The crime team also seized a few strands of hair, from the deceased‟s hands. However, the hair samples were not sought to be matched with the Appellant‟s hair samples. Counsel emphasized that these facts, besides the circumstance that the crime team had observed that blood was outside the room, and near the door, and further that some vomit could be seen in the room, completely falsified the prosecution version. It was urged that the IO did not act fairly in this case, and

Crl. A.152/1998 Page 4 even suppressed the crime team report; the same had to be exhibited as PW-20/DA, in the cross examination.

11. It was urged that there were serious doubts about the reporting and registration of the FIR. PW-2 in her cross examination deposed that her statement (Ex. PW-2/A) was recorded at the police station. She claims to have accompanied Giarsi Ram and Laxman Das to the police station at about 3-4 PM. She stated that they were present at the police station till night. She also testified that the statements of her father and Laxman Dass were recorded at the police station and that seizure memos PW 1/A, PW 1/B, PW 1/C were prepared at the Police station and that she and her father signed them there. Laxman Dass (PW-12) stated in his cross examination that his statement was recorded at the police station at about 9 or 9:30 PM in the presence of Angoori and Giarsi Ram. PW-15 ASI Dharambir on the other hand, denied that the statement of Angoori was recorded at the police station. He deposed that the statement was recorded at the scene of crime after its commission. PW-16 Ishwar Singh (Investigating Officer) denied summoning Angoori, Giarsi Ram or Laxman Dass to the police station. He stated that the FIR was registered at 4:10 PM. In these circumstances, the evidence of police officials cannot be solely relied upon. It was also argued that PW-10 Constable Joginder Singh affirmed that the FIR was recorded at 02:50 PM and he was assigned to deliver a copy of the same to the Magistrate. He stated that he left the police station at 03 or 03:15 PM and returned within 2 hours. Counsel pointed out that the endorsement on the copy received by the magistrate was 11 PM. In case the FIR was recorded at the mentioned time, it would have been delivered to the magistrate latest by 5 PM. These create a doubt about the timing of the FIR, which is ante-timed according to this court.

12. Similarly, it was submitted that the prosecution also was unable to convincingly prove that the body was sent for inquest, within reasonable time. PW-13 Constable Mangey Ram stated that he delivered the dead body as well as the inquest report before sunset to the mortuary. However, according to the endorsement on the application for post-mortem (Ex. PW 20/F) it was received at 12:10 AM the night between 10th and 11th December, 1991. The inquest papers were endorsed at 9 AM on 11th December, 1991. It is clear that there an unnatural delay in sending of papers and the body to manipulate the recordings in the FIR. PW-16 Inspector Ishwar Singh states in his cross examination that there was no staff at the

Crl. A.152/1998 Page 5 mortuary at night and thus, the entry was made in the morning. However this explanation holds no ground in the light of constable Mangey Ram‟s assertion.

13. The learned APP, who argued on behalf of the State, submitted that though the testimony of witnesses was not believed by the Trial Court, what weighed with its reasoning was that the occurrence took place within a room bolted from inside, and no one, except the Appellant and the deceased were in the room. The deceased‟s body was found; it had no less than 19 stab injuries. The knife, which was the weapon of offence, was also found in the room. The APP urged that the Trial Court acted within its jurisdiction, and correctly in inferring that the Appellant alone, and no one else could have committed the crime. If in fact, his case, that he had been given something mixed with a sedative, after which he lost consciousness were true, no such suggestion was given to any prosecution witness. Also, PW- 1 was never asked any question suggestive of frequent quarrels between the couple pertaining to the deceased not wanting to go back to her matrimonial home. However, there was a distinct change in stand when PW-2 was cross examined; it was suggested to her that the deceased had refused to leave her parental home, at which the Appellant was unhappy.

14. Learned counsel submitted that between the two versions, that of PW-1, i.e that he had brought the deceased home, a month prior to the incident, because Laxman used to misbehave with her, is plausible. The statement of the prosecution witnesses, however, remained unchallenged. There was also no dispute that the occurrence took place on the first floor of the house. Though the version of the eyewitnesses was not believed, the Trial Court inferred, quite correctly that the room was broken open which was suggestive of its being bolted from inside. This was also corroborated by the photograph Ex. PW-5/19. Also, as held by the impugned judgment on record, there was nothing indicative that there was any other ingress or egress into the room. So far as motive was concerned, the material on record showed that Laxman was in the habit of getting drunk, and beating his wife frequently. This marital discord was the source of constant friction; the deceased went to her parental home, and her father refused to allow her to leave, for the matrimonial home, as long as the Appellant persisted with this behavior. The unchallenged testimony of the prosecution witnesses established that the Appellant used to routinely beat up the deceased; she had to return to her parental home. The Appellant‟s behavior was also supported by the testimony of the

Crl. A.152/1998 Page 6 deceased‟s mother, and his mother in law. Having regard to these facts, and the strong circumstance that the Appellant was unable to give any convincing explanation why his wife lay dead in the room, the Trial Court was justified in concluding that he alone, and none else, was the author of the crime.

15. At the outset, we notice that the Trial Court held, in the impugned judgment, that the testimony of the principal or star witness of the prosecution was unreliable. The Trial Court also held that there was doubt about whether the FIR was recorded at the time claimed by the prosecution; the court was also unconvinced that the special report was sent to the magistrate, under Section 157, Cr.PC. within reasonable time. The court further held that Angoori Devi‟s statement was not recorded in the manner, or at the time, that the prosecution claimed it to be. In Para 49 of the impugned judgment, the Trial Court concluded that having regard to all these factors, PW-2 was not an eyewitness to the occurrence, and that the FIR was ante-timed. The court even held that the IO had exercised ingenuity in constructing a story, and had propped up three eyewitnesses. As regards the other two witnesses, the court held, previously, in Para 32, that:

" Considering the testimonies of PW-1 Giarsi Ram, PW-12 Laxman Dass, PW-15 Dharambir Singh and PW-16 ASI Mahabir Singh, I am of the confirmed view that PW- 1 Giarsi Ram and PW-12 Laxman Dass arrived at the spot, if at all, after the arrival of the police when the door of the room had already been removed to the hospital. Consequently, PW-1 Giarsi Ram and PW-12 Laxman Dass could not have seen the occurrence as claimed by them."

16. Now, as to the first circumstance, i.e that the Appellant was alone with the deceased in the room, when she was murdered, i.e, the point from where the Trial Court proceeded to take up the case, after holding that the eyewitness testimonies were unreliable. PW-1 states that when he returned to his house, the police was already present there and that a crowd was present outside the house. He stated that the appellant was taken to the hospital half an hour after his arrival after making enquiries from Angoori (PW-2). This fact alone is sufficient to hold that the Appellant could not, under these circumstances have been admitted to the hospital, as an "unknown" or unidentified injured person. PW-2 deposed that on hearing noise at about 1:30 PM, she peeped into the room through the jharoka (ventilator) and saw Laxman giving knife blows to Veena. She raised an alarm subsequent to which he stabbed himself. In the meantime Laxman Dass (PW-12) came up and broke open the door to find Veena lying

Crl. A.152/1998 Page 7 dead and appellant soaked in blood. She also claims that her father had not arrived by the time the appellant was sent for examination. However in the statement (Ex. Pw 2/A) claimed to be recorded at the spot by ASI Dharambir (Rukka) on the basis of which FIR was registered, PW-2 stated that both her father and Laxman Dass were present with her at the time of commission of the offence and had seen the incident through the jarokha subsequent to which they had broken open the door. Angoori‟s statement in her cross examination that her parents were not present in the house when the appellant had come is also contradictory to statements given by other witnesses. PW-12 was declared as a hostile witness by the prosecution. In the examination-in-chief, he stated that upon hearing Angoori‟s cries, he and Giarsi Ram rushed to the house and peeped through the jharokha. They saw the deceased lying on a cot, while appellant was stabbing himself. Thereafter the "public" (i.e members of the public) broke open the door. PW-12 denied having seen the appellant stab the deceased. He claimed that the police arrived 5-10 minutes after their arrival. He also deposed having have told ASI Mahabir the Appellant‟s name and that he was the son-in-law of Giarsi Ram. He stated that the door was broken open by Giarsi Ram and others while he watched from the roof.

17. What can be immediately gleaned from the above discussion is that apart from the manner of recording of FIR, the timing, the recording of witnesses‟ statement, etc, there was a big question mark as to who in fact broke open the door, and discovered the incident. Angoori Devi said that PW-12 broke open the door; the latter, however says that members of the public did so. Further, PW-12 and PW-1 say that they arrived at the scene, after the police had reached there. The question of their being eyewitnesses does not arise at all. Their testimonies also conflict with that of PW-2. In this state of affairs, this court is of the view that the Trial Court should not have, after disbelieving the version of the main eyewitnesses, embarked on an discovery of the truth that was not even made out by the prosecution in the first place. If indeed, the testimonies of these witnesses were suspect or dubious, there was no question of accepting it selectively, to say that the Appellant had to explain his presence, in the room, where his wife‟s body was found. The foundation of criminal law in this country is the presumption of innocence. If one proceeds from that premise, the prosecution had to prove, beyond reasonable doubt that the Appellant was found in that room, alone, in the manner alleged by it, no less than that. It was only after that proof was shown, that the Appellant‟s

Crl. A.152/1998 Page 8 onus of showing the special circumstance, within his knowledge would have arisen, in accordance with Section 106 of the Evidence Act. Long ago, in Shamhu Nath Mehra v State of Ajmer AIR 1956 SC 404, the Supreme Court explained the law under Section 106 in the following manner:

"This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are preeminently or exceptionally within his knowledge. Ifthe section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried."

The Trial Court‟s approach in this regard was erroneous; it unwittingly applied a standard lower than the threshold of proof beyond reasonable doubt, in this regard, even after correctly applying it to discard the testimonies of eyewitnesses.

18. The observations of this court are not based merely on the appreciation of the eyewitnesses‟ testimony; the FSL report clearly indicates that the blood on the knife was that of the deceased, which immediately improbabilizes the prosecution version that the Appellant first stabbed the deceased, after which he inflicted 9 injuries upon himself. This circumstance is strengthened by the presence of the Appellant‟s blood (A group) on the deceased‟s clothes as well as his clothes. The prosecution version that the knife would have fallen and been smeared with the deceased‟s blood, after the Appellant stabbed himself, has no foundation; besides that does not appear to be the case, because the knife - as evident from the prosecution‟s photographs placed on the record- was lying in a corner of the room, and not near the cot or bed, where the deceased and the Appellant were rescued from. The lack of any explanation of this aspect, by the prosecution, which also failed to explain the presence of blood outside the room (as per the crime team report Ex. PW-20/DA) is fatal to its story.

Crl. A.152/1998 Page 9 Furthermore, though the Trial Court held that the room was inaccessible from any other place, it is noteworthy to extract the following excerpt from its judgment:

"66. Coming to the question whether there was any other ingress or egress from the room, there is nothing on the record to suggest the existence of such a thing. The Learned amicus curiae has contended that has admitted by PW- 15 ASI Dharambir Singh there was a window in the room and the latter was also found in the room and that these things are suggestive of existence of some other way out from the room in question.

67. PW- 15 ASI Dharambir Singh has stated in his cross-examination (Page 4 para

2) that there was one window in the room. The photograph EX. PW- 5/18 shows a ladder standing against the wall of the room. This letter has also been shown in the skilled site plan PW- 3/A. But from these facts it cannot be inferred that besides the main door in the room in question there was another way to enter the room.."

In this Court‟s opinion, the fallacy in the Trial Court's reasoning is self-evident. If in fact there was a window to the room, and a ladder was leading up to it, it would be reasonable to assume without any further evidence that the window - together with the ladder, gave the opportunity of access to the room itself. If the prosecution's story were to be seen in the light of these aspects, the existence of another entry into the room, assumes considerable significance which the Trial Court appears to have lost sight of.

19. Whilst the Trial Court's approach to the case, in scrutinizing the evidence independently of the theory put forward by the prosecution, cannot be faulted, yet the degree of satisfaction which a criminal Court has to record on the basis of circumstantial evidence, appears to have been overlooked in this case. Before a case against an accused vesting on circumstantial evidence can be said to be fully established, the following conditions must be fulfilled as laid down in Hanumant v. State of M.P. [1953] SCR 1091:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;

2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

Crl. A.152/1998 Page 10

3. The circumstances should be of a conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

These five golden principles have been described as the panch-sheel of the proof of a case based on circumstantial evidence.

20. The lack of any credibility of the three main eyewitnesses relied upon by the prosecution during the trial, the absence of explanation regarding the presence of blood near the door of the room where the deceased body was found (as well as the place where the appellant was found in an unconscious position, after suffering nine knife injuries); the absence of explanation of how, instead of the appellant's blood, the deceased's blood was found smeared on the knife - raising questions as to whether the appellant had been stabbed earlier or later; the existence of an alternative entry through the window to the room, by the side of which conveniently a ladder had been discerned, and the prosecution's deliberate omission to produce the crime team‟s telling report, which suggested a biased investigation, all raised serious questions which ought to have alerted the Trial Court. That, sadly did not happen resulting in what in our view was an unsustainable conviction of the appellant.

21. In view of the above reasons and findings, the appeal deserves to succeed. It is accordingly allowed. The personal bond and surety furnished by the appellant are hereby discharged. The appeal is consequently allowed.

S. RAVINDRA BHAT (JUDGE)

PRATIBHA RANI (JUDGE) OCTOBER 24, 2011

Crl. A.152/1998 Page 11