Delhi High Court
Mohd.Hanif vs State on 13 August, 2012
Author: Sanjiv Khanna
$~21.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRIMINAL APPEAL NO.98/2011
% Date of decision: 13th August, 2012
MOHD.HANIF ..... Appellant
Through Mr. Siddharth Aggarwal & Mr.
Adit S. Pujari, Advocates.
versus
STATE ..... Respondent
Through Ms. Richa Kapoor, APP for the
State.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE S.P.GARG
SANJIV KHANNA, J. (ORAL):
Mohd. Hanif by this appeal seeks quashing of his
conviction under Section 302 of the Indian Penal Code, 1860
(IPC, for short) by the impugned judgment dated 27th October,
2010 in Session Case No. 21/2008 arising out of FIR No.
199/2008, Police Station, Nand Nagri. The appellant has also
questioned the order of sentence dated 30th October, 2010 by
which the appellant has been sentenced to imprisonment for life
CRL.A. No. 98/2011 Page 1 of 25
and fine of Rs.5,000/-. In default of payment of fine, the
appellant has to undergo simple imprisonment for six months.
2. The appellant has been convicted for murder of his wife
Rozina on the night of 19-20th April, 2008 at their residence A-
2/212, Gali No. 2, East Gokalpur, Amar Colony, Delhi.
3. Before we go on to the merits of the case, it may be
appropriate to record and state that this appeal was preferred by
Mohd. Hanif through Mr. K.K. Tyagi, Advocate. On 17th July,
2012, the appellant-Mohd. Hanif had appeared on production
warrant and had stated that Mr. K.K. Tyagi, Advocate was to
argue this appeal on merits. As Mr. K.K. Tyagi, Advocate was
not present, the appeal was not taken up for hearing on the said
date and was adjourned to 6th August, 2012. On 6th August,
2012, Mr. K.K. Tyagi, Advocate was heard at length but as
arguments could not conclude, the appeal was adjourned to 7th
August, 2012. On 7th August, 2012, Mr. K.K. Tyagi, Advocate
did not appear and in the interest of justice, the matter was
renotified for 8th August, 2012. On the said date again, Mr. K.K.
Tyagi, Advocate did not appear. Mohd. Yaseen, father of the
appellant was present in the Court and informed that the said
CRL.A. No. 98/2011 Page 2 of 25
Advocate had expressed his inability to appear as there was a
dispute regarding payment of fee. He requested that a legal aid
counsel may be appointed. In these circumstances, Mr.
Siddhartha Aggarwal, Advocate, who is on the panel of the Delhi
High Court Legal Services Committee, was appointed as Amicus
Curiae. We have heard Mr. Siddhartha Aggarwal, Advocate
today.
4. It is an undisputed position that the deceased Rozina died
a homicidal death. The post mortem report of Rozina has been
proved and marked Exhibit PW-5/A. The said post mortem was
conducted on 22nd April, 2008 by Dr. Arvind Kumar, who
appeared as PW-5. Post mortem started at 11.35 a.m. and it
was concluded at 12.20 p.m. on the same day. As per the post
mortem report, the deceased had died about 48 hours before
due to asphyxia due to ante mortem strangulation by ligature
The deceased also had the following injuries:
"1)Reddish hard grooved parchment like
ligature mark present around the neck
completely. Ligature mark is running almost
horizontly. In midline front of neck, mark is
0.8 cm broad and 7 cm below on left side of
neck mark is 1 cm broad and 5 cm below left
ear and on right side of neck mark is 0.7 cm
CRL.A. No. 98/2011 Page 3 of 25
broad and 4 cm below right ear. On back of
neck mark is below hairline running
horizontally, mark is 8 cm below occipital
protuberance and 0.7 cm broad. At places
skin folds are present on the marks. On fine
dissection of mark, subectomy tissue is pale
with margins are hyper. On further dissection
hemorrhage present in soft tissue and neck
muscles below the mark. Hyoid, cricoids and
thyroid cartilage are present.
2) Reddish linear abrasion of size 2.1 cm x 0.2
cm present over closum of hand below little
finger.
3) Reddish linear abrasion of size 1.8 cm x 0.2
cm present over right side of forehead 4.5 cm
above right eyebrow and 3 cm from midline.
4) Reddish linear abrasion of size 0.8 cm x 0.2
cm present to right eyebrow."
5. The next question which arises for consideration is
whether the appellant is responsible and had caused the death
of Rozina. It is accepted position that the appellant was
husband of Rozina and they were residing at the room
mentioned above. The prosecution case relies upon the
testimony of PW-1, Shabnam. She is the sister-in-law of the
accused and the deceased, being the wife of the appellant's
brother. PW-1 in her statement had stated that Rozina died on
20th April, 2008. PW-1 had woken up in the morning at 4/4.30
a.m., as she was not feeling well. The appellant was standing in
CRL.A. No. 98/2011 Page 4 of 25
the gallery, holding his son. The appellant looked sad and the
son was crying. On being questioned why he was sad, the
appellant asked PW-1 to go inside his room and see what had
happened. When PW-1 went inside the room of the appellant,
she found that Rozina was lying dead. She cried and shouted
and thereafter persons from the neighbourhood gathered there.
Somebody made a call to the police and the police reached the
spot.
6. Mr. Siddhartha Aggarwal, learned counsel for the
appellant has highlighted and drawn our attention to the
statement made by PW-1 in the examination-in-chief that the
police did not interrogate her. He also drew our attention to the
statement made by PW-2, Kalsum, mother of the deceased that
they suspected, and Rozina had also told them, that PW-1 had
illicit relations with the appellant. Similar allegations were made
by PW-7, Shamsher.
7. Regarding the first contention, it is noticed that PW-1 was
reexamined on 1st May, 2010 pursuant to order dated 21st April,
2010 on an application moved by the prosecution. In the re-
examination, on 1st May, 2010, PW-1 had stated that her
CRL.A. No. 98/2011 Page 5 of 25
husband was not present in the house when Rozina had died
and had gone to his village in U.P. Further, the appellant was
sad as well as nervous. The witness was cross-examined by
the Additional Public Prosecutor on certain aspects. She denied
that she had been won over by the accused, who was her
brother-in-law. In the cross-examination on 1st May, 2010, PW-1
had denied the suggestion that the police had not recorded her
statement in the case and she was a planted witness.
8. It is not denied, and it is an accepted position that PW-1,
Shabnam was residing in the same property in an adjacent
room. Her presence at the spot on the day of occurrence at the
property in question is accepted. In the cross-examination of
PW-1 no question was put to her and no suggestion was given
that she was not present at the spot, i.e., in the property in
question. We also take note that the police had received
information recorded in DD entry No. 42A (Exhibit PW-15/X) at
5.25 a.m. on 20th April, 2008 from telephone No. 9350101558
that a wife had been killed by her husband. Thereafter,
Investigating Officer PW-15, SI Lal Sahab went to the spot and
saw dead body of a lady lying on the bed in the room and
CRL.A. No. 98/2011 Page 6 of 25
observed the ligature marks on the neck and injury mark on her
forehead. The said facts are mentioned in Exhibit PW-15/A.
The appellant, who was identified as the husband of the
deceased lady, met PW-15 at the spot in the morning. We are
not referring to Exhibit PW-12/A and the statement of PW-15 as
a confession made by the appellant-accused to the police which
is inadmissible in evidence under Sections 25 and 26 of the
Evidence Act. However, what is relevant and important is that
when the police reached the spot early in the morning on 20th
April, 2008, the appellant accused was present there in the
house. It is also noticeable that the appellant accused had not
informed the police but a third person had informed the police
about the death of his wife Rozina. PW-12 has proved on
record Exhibit PW-12/A scene of crime, visitation report which
shows that the said team had visited the spot at about 6.45 a.m.
and remained there till 7.15 a.m.
9. The appellant accused in his statement under Section 313
Cr.P.C. in response to question No. 5 had stated as under:-
"Q.5 It is evidence against you that on seeing
your wife Rozina lying dead, she started
crying and shouting and on hearing her voice
CRL.A. No. 98/2011 Page 7 of 25
many public persons were gathered there and
someone informed the police. What you have
to say about it?
Ans. I do not know, however I reached at my
house on the day of incident at about 7/7.30
a.m. and at that time police already reached at
the spot."
10. The appellant accused, therefore, does not dispute or
deny the position that at 7/7.30 a.m. he was present at the spot.
The appellant accused had not given any explanation or reason
where he was before 7/7.30 a.m. As per the prosecution, it is
clear from the statement of PW-15 that the appellant was
present there when they reached the spot. The statement made
by the appellant that he reached the spot after the police had
arrived is apparently incorrect. PW-14, Constable Mahender in
his statement has stated that he had gone to the spot along with
PW-15, SI Lal Sahab. The appellant was found present in the
house and was interrogated by the Investigating Officer.
11. Having considered the statement of PW-1, we have no
reason to disbelieve her or suspect that PW-1 wanted to falsely
or wrongly implicate the appellant. The appellant being the
husband of the deceased, it was normal and natural for him to
be with his wife, i.e., deceased, in their room at night. His
CRL.A. No. 98/2011 Page 8 of 25
presence early in the morning, when the police had visited the
spot, clearly shows that he was present at that time. The
appellant has not indicated or stated any alibi or explanation
where he had gone if he was not present in his room in the night
intervening 19-20 April, 2008.
12. Learned counsel for the appellant has submitted that the
testimony of PW-1 should be disregarded in view of the
allegations made against PW-1 by PW-2, Kalsum, mother of the
deceased and PW-7, Shamsher, uncle of the deceased. The
said witnesses were not eye witnesses to the alleged incident.
PW-7 had in his testimony directly implicated and stated that
PW-1, Shabnam was having illicit relationship with the appellant
and rather she was an accused in the case and not a mere
witness. Kalsum, PW-2 had moved various applications in the
office of Commissioner of Police, National Commission for
Women etc. making allegations against PW-1, Shabnam. It is
clear from the statements of PW-2 and 7 that they
suspected that Shabnam was equally responsible and
may have a hand in the death of Rozina. Their apprehension
CRL.A. No. 98/2011 Page 9 of 25
and suspicion as relatives of the deceased is understandable.
But the police has to act on the basis of evidence and not
suspicion or apprehension. Moreover, the said witnesses did
not doubt or state that the appellant was not involved and had
not committed the said offence. PW-6, Kadir in his statement
had stated that he had asked PW-1, Shabnam whether she was
not aware of the murder though her room was adjacent to the
room of Rozina? It is clear from the statements of PW-2, 3, 6
and 7 that the relationship between the deceased and the
appellant was far from cordial and was strained. There were
allegations being made against each other. These statements
are being relied upon only for this purpose and to this extent.
13. The inquest report PW-4/C, which was recorded by PW-4,
Vipin Garg, Sub Divisional Magistrate, Seema Puri, specifically
records that in the neck round ligature marks were found and the
murder was probably committed by strangulating the deceased
with the help of electricity wire, which was found at the spot and
was seized vide seizure memo Exhibit PW-14/A. It was urged
that no public witnesses were signatories to the seizure memo.
This argument does not impress us. Public witnesses normally
CRL.A. No. 98/2011 Page 10 of 25
do not like to be associated with recovery proceedings. In the
present case, photographs of the scene of the crime were taken
by PW-9, Constable Sunil Kumar. In his statement he had
pointed out that on the site, dead body of a female was lying on
the bed and red colour electric wire was also lying near the dead
body. Seven photographs were taken by him and marked
Exhibits PW-9/X1 to X7. The cooler and the wire can be seen in
the photographs marked Exhibits PW-9/X4 and PW-9/X5.
14. Learned counsel for the appellant further submitted that a
broken mobile phone was recovered from the spot but the call
details of the said mobile phone were not ascertained and
placed on record. The mobile phone was sized vide Exhibit PW-
15/C. The mobile phone was certainly recovered, but failure to
get the call details and place them on record do not materially
affect the prosecution case. It has not been explained to us why
and for what reason the case of the prosecution should be
disbelieved, given the failure to get the call details or place them
on record.
15. Learned counsel for the appellant further submitted that
there is a discrepancy whether the body of the deceased was
CRL.A. No. 98/2011 Page 11 of 25
lying on the floor or on the bed when the police, namely,
Investigating Officer PW-16, Bacchu Singh, PW-15, SI Lal
Sahab, PW-14 Ct. Mahender and PW-12 SI E.S. Yadav reached
the place of crime. Whether the body was lying on the bed or on
the floor, is a minor issue. The photographs clearly show that
the body was lying on the bed when the photograph was taken
by PW-9, a member of the crime team.
16. Learned counsel for the appellant has submitted that the
viscera report was sent late. PW-16 had stated that the viscera
preserved by the doctor was taken into possession vide memo
Exhibit PW-14/B and sent to FSL, Rohini through Constable
Rajbir. The FSL report received subsequently was marked
Exhibit P-X. We notice that Exhibit P-X is not viscera report but
it is an FSL report in respect of electrical wire, chunni and one
cloth piece which was seized from the spot. After the report was
received, another application was moved by the Investigating
Officer PW-16 with PW-5 on 4th August, 2008. Thereafter,
report Exhibit PW-5/B was given by PW-5 on 8th September,
2008. In this report (Exhibit PW-5/B), PW-5 has clearly
mentioned that the injury No. 1 mentioned in the post mortem
CRL.A. No. 98/2011 Page 12 of 25
report could have been caused by the wire which was produced
before him.
17. Another contention raised by the appellant was that there
was delay in recording the FIR. DD entry No. 42A (Exhibit PW-
15/X) was recorded at about 5.30 a.m. but the FIR was
registered at 8.30 a.m. We do not think there is an inordinate or
an extraordinary delay in recording the FIR after DD entry was
recorded at 5.30 a.m. The police officers, after recording the DD
entry, reached the spot and conducted investigation. The crime
team reached the spot and took photographs. The crime team
were at the site of crime till 7.15 a.m. (see Exhibit PW-12/A).
PW-4, Vipin Garg, SDM, Seema Puri also reached the spot and
conducted the inquest proceedings. Only after visiting the spot,
the rukka was prepared and was sent to the police station for
registration of the FIR. Keeping in view the said facts, we do not
think there is any unexplained delay in recording the FIR.
18. The next aspect which we have to keep in mind is the
conduct of the appellant-accused himself. As noticed above, we
have come to the conclusion that the appellant accused was
present at the scene of the crime, i.e., the room, along with his wife
CRL.A. No. 98/2011 Page 13 of 25
on the said night. The post mortem report shows that the death
had taken place between 11-12 p.m. on the night of 19th April,
2008. The conduct of the appellant-accused thereafter in not
informing the police, not taking his wife for treatment and
keeping quiet shows that he has been rightly implicated and
convicted for the said offence. In case the appellant accused
was not involved, he would have certainly taken steps to inform
the family members living in the same building and his in laws,
i.e., parents of the deceased. He did not do so. On the other
hand, it was only in the morning at 5.30 a.m. that a phone call
was received in the Police Control Room from a third person
stating that a husband has killed his wife at the spot in question.
The police got activated and after investigation, the appellant-
accused was arrested. The death in the present case had taken
place at night in the room in which the appellant was also
present. No one else was present with the accused at that time.
In this case there was no third person, who could have possibly
committed the said act. It is not the case of the appellant that
the deceased had committed suicide. The photographs and place
of occurrence did not indicate the said possibility. Facts
to the
contrary or those absolving the appellant, if any, were within the
special and specific knowledge of the appellant. The appellant
had not pleaded, stated or explained the said special facts.
Section 106 of the Evidence Act, 1872 is applicable and it was
the responsibility of the appellant to at least explain the special
exculpatory facts exonerating him or showing his innocence i.e.
there was involvement of any third person or the deceased had
committed suicide. We would like to reproduce the following
observations of the Supreme Court in Trimukh Maroti Kirkan
versus State of Maharashtra, (2006) 10 SCC 681:-
"18. The question of burden of proof where
some facts are within the personal knowledge
of the accused was examined in State of
W.B. v. Mir Mohd. Omar [(2000) 8 SCC 382 :
2000 SCC (Cri) 1516] . In this case the
assailants forcibly dragged the deceased,
Mahesh from the house where he was taking
shelter on account of the fear of the accused
and took him away at about 2.30 in the night.
Next day in the morning his mangled body
was found lying in the hospital. The trial court
convicted the accused under Section 364 read
with Section 34 IPC and sentenced them to 10
years' RI. The accused preferred an appeal
against their conviction before the High Court
and the State also filed an appeal challenging
the acquittal of the accused for murder
charge. The accused had not given any
explanation as to what happened to Mahesh
after he was abducted by them. The learned
Sessions Judge after referring to the law on
circumstantial evidence had observed that
there was a missing link in the chain of
evidence after the deceased was last seen
together with the accused persons and the
discovery of the dead body in the hospital and
had concluded that the prosecution had failed
to establish the charge of murder against the
accused persons beyond any reasonable
doubt. This Court took note of the provisions
of Section 106 of the Evidence Act and laid
down the following principle in paras 31 to 34
of the reports: (SCC p. 392)
"31. The pristine rule that the burden
of proof is on the prosecution to prove
the guilt of the accused should not be
taken as a fossilised doctrine as though
it admits no process of intelligent
reasoning. The doctrine of presumption
is not alien to the above rule, nor would
it impair the temper of the rule. On the
other hand, if the traditional rule relating
to burden of proof on the prosecution is
allowed to be wrapped in pedantic
coverage, the offenders in serious
offences would be the major
beneficiaries and the society would be
the casualty.
32. In this case, when the
prosecution succeeded in establishing
the afore-narrated circumstances, the
court has to presume the existence of
certain facts. Presumption is a course
recognised by the law for the court to
rely on in conditions such as this.
33. Presumption of fact is an
inference as to the existence of one fact
from the existence of some other facts,
unless the truth of such inference is
disproved. Presumption of fact is a rule
in law of evidence that a fact otherwise
doubtful may be inferred from certain
other proved facts. When inferring the
existence of a fact from other set of
proved facts, the court exercises a
process of reasoning and reaches a
logical conclusion as the most probable
position. The above principle has gained
legislative recognition in India when
Section 114 is incorporated in the
Evidence Act. It empowers the court to
presume the existence of any fact which
it thinks likely to have happened. In that
process the court shall have regard to
the common course of natural events,
human conduct, etc. in relation to the
facts of the case.
34. When it is proved to the
satisfaction of the Court that Mahesh
was abducted by the accused and they
took him out of that area, the accused
alone knew what happened to him until
he was with them. If he was found
murdered within a short time after the
abduction the permitted reasoning
process would enable the Court to draw
the presumption that the accused have
murdered him. Such inference can be
disrupted if the accused would tell the
Court what else happened to Mahesh at
least until he was in their custody."
19. Applying the aforesaid principle, this
Court while maintaining the conviction under
Section 364 read with Section 34 IPC
reversed the order of acquittal under Section
302 read with Section 34 IPC and convicted
the accused under the said provision and
sentenced them to imprisonment for life.
20. In Ram GulamChaudhary v. State of
Bihar [(2001) 8 SCC 311 : 2001 SCC (Cri)
1546] the accused after brutally assaulting a
boy carried him away and thereafter the boy
was not seen alive nor his body was found.
The accused, however, offered no explanation
as to what they did after they took away the
boy. It was held that for the absence of any
explanation from the side of the accused
about the boy, there was every justification for
drawing an inference that they had murdered
the boy. It was further observed that even
though Section 106 of the Evidence Act may
not be intended to relieve the prosecution of
its burden to prove the guilt of the accused
beyond reasonable doubt, but the section
would apply to cases like the present, where
the prosecution has succeeded in proving
facts from which a reasonable inference can
be drawn regarding death. The accused by
virtue of their special knowledge must offer an
explanation which might lead the court to draw
a different inference.
21. In a case based on circumstantial
evidence where no eyewitness account is
available, there is another principle of law
which must be kept in mind. The principle is
that when an incriminating circumstance is put
to the accused and the said accused either
offers no explanation or offers an explanation
which is found to be untrue, then the same
becomes an additional link in the chain of
circumstances to make it complete. This view
has been taken in a catena of decisions of this
Court. [See State of T.N. v. Rajendran [(1999)
8 SCC 679 : 2000 SCC (Cri) 40] (SCC para
6); State of U.P. v. Dr. RavindraPrakash
Mittal [(1992) 3 SCC 300 : 1992 SCC (Cri)
642 : AIR 1992 SC 2045] (SCC para 39 : AIR
para 40); State of
Maharashtra v. Suresh [(2000) 1 SCC 471 :
2000 SCC (Cri) 263] (SCC para 27); Ganesh
Lal v. State of Rajasthan[(2002) 1 SCC 731 :
2002 SCC (Cri) 247] (SCC para 15)
and Gulab Chand v. State of M.P. [(1995) 3
SCC 574 : 1995 SCC (Cri) 552] (SCC para
4).]
22. Where an accused is alleged to have
committed the murder of his wife and the
prosecution succeeds in leading evidence to
show that shortly before the commission of
crime they were seen together or the offence
takes place in the dwelling home where the
husband also normally resided, it has been
consistently held that if the accused does not
offer any explanation how the wife received
injuries or offers an explanation which is found
to be false, it is a strong circumstance which
indicates that he is responsible for
commission of the crime. In Nika Ram v. State
of H.P. [(1972) 2 SCC 80 : 1972 SCC (Cri)
635 : AIR 1972 SC 2077] it was observed that
the fact that the accused alone was with his
wife in the house when she was murdered
there with "khukhri" and the fact that the
relations of the accused with her were
strained would, in the absence of any cogent
explanation by him, point to his guilt.
In Ganeshlal v. State of Maharashtra [(1992) 3
SCC 106 : 1993 SCC (Cri) 435] the appellant
was prosecuted for the murder of his wife
which took place inside his house. It was
observed that when the death had occurred in
his custody, the appellant is under an
obligation to give a plausible explanation for
the cause of her death in his statement under
Section 313 CrPC. The mere denial of the
prosecution case coupled with absence of any
explanation was held to be inconsistent with
the innocence of the accused, but consistent
with the hypothesis that the appellant is a
prime accused in the commission of murder of
his wife. In State of U.P. v. Dr.
RavindraPrakash Mittal[(1992) 3 SCC 300 :
1992 SCC (Cri) 642 : AIR 1992 SC 2045] the
medical evidence disclosed that the wife died
of strangulation during late night hours or
early morning and her body was set on fire
after sprinkling kerosene. The defence of the
husband was that the wife had committed
suicide by burning herself and that he was not
at home at that time. The letters written by the
wife to her relatives showed that the husband
ill-treated her and their relations were strained
and further the evidence showed that both of
them were in one room in the night. It was
held that the chain of circumstances was
complete and it was the husband who
committed the murder of his wife by
strangulation and accordingly this Court
reversed the judgment of the High Court
acquitting the accused and convicted him
under Section 302 IPC. In State of
T.N. v. Rajendran [(1999) 8 SCC 679 : 2000
SCC (Cri) 40] the wife was found dead in a
hut which had caught fire. The evidence
showed that the accused and his wife were
seen together in the hut at about 9.00 p.m.
and the accused came out in the morning
through the roof when the hut had caught fire.
His explanation was that it was a case of
accidental fire which resulted in the death of
his wife and a daughter. The medical
evidence showed that the wife died due to
asphyxia as a result of strangulation and not
on account of burn injuries. It was held that
there cannot be any hesitation to come to the
conclusion that it was the accused (husband)
who was the perpetrator of the crime."
19. Reference can also be made to the decision of the
Supreme Court in State of Rajasthan versus Kashi Ram,
(2006) 12 SCC 254, wherein it has been held as under:
"22. In Sahadevan v. State [(2003) 1 SCC 534
: 2003 SCC (Cri) 382] the prosecution
established the fact that the deceased was
seen in the company of the appellants from
the morning of 5-3-1985 till at least 5 p.m. on
that day when he was brought to his house,
and thereafter his dead body was found in the
morning of 6-3-1985. In the background of
such facts the Court observed: (SCC p. 543,
para 19)
"Therefore, it has become obligatory
on the appellants to satisfy the court as
to how, where and in what manner
Vadivelu parted company with them.
This is on the principle that a person
who is last found in the company of
another, if later found missing, then the
person with whom he was last found
has to explain the circumstances in
which they parted company. In the
instant case the appellants have failed
to discharge this onus. In their
statement under Section 313 CrPC
they have not taken any specific stand
whatsoever."
23. It is not necessary to multiply with
authorities. The principle is well settled. The
provisions of Section 106 of the Evidence Act
itself are unambiguous and categoric in laying
down that when any fact is especially within
the knowledge of a person, the burden of
proving that fact is upon him. Thus, if a person
is last seen with the deceased, he must offer
an explanation as to how and when he parted
company. He must furnish an explanation
which appears to the court to be probable and
satisfactory. If he does so he must be held to
have discharged his burden. If he fails to offer
an explanation on the basis of facts within his
special knowledge, he fails to discharge the
burden cast upon him by Section 106 of the
Evidence Act. In a case resting on
circumstantial evidence if the accused fails to
offer a reasonable explanation in discharge of
the burden placed on him, that itself provides
an additional link in the chain of
circumstances proved against him. Section
106 does not shift the burden of proof in a
criminal trial, which is always upon the
prosecution. It lays down the rule that when
the accused does not throw any light upon
facts which are specially within his knowledge
and which could not support any theory or
hypothesis compatible with his innocence, the
court can consider his failure to adduce any
explanation, as an additional link which
completes the chain. The principle has been
succinctly stated inNainaMohd., Re. [ AIR
1960 Mad 218 : 1960 Cri LJ 620]"
20. From the aforesaid discussion, the following aspects
become clear:
(i) The appellant was with his wife in the flat/room at A-
2/212, Gali No. 2, East Gokalpur, Amar Colony,
Delhi during the night of 19-20th April, 2008.
(ii) The wife of the appellant Rozina died because of
asphyxia due to strangulation by ligature probably
between 11-12 p.m. on 19-20th April, 2008.
(iii) There was ligature mark on the neck of the
deceased. The deceased also had four ante mortem
injuries on her body, which disclose physical
violence.
(iv) The appellant did not inform or tell anyone about her
homicidal death till the next morning when for the
first time he spoke to PW-1, Shabnam.
(v) The appellant did not inform the police about the
death and murder of Rozina. The appellant did not
take his wife Rozina to the hospital or to a doctor for
treatment/medical aid.
(vi) A third person had made a telephone call to the
Police Control Room and DD entry No. 42A Exhibit
PW-15/X was recorded at 5.30 a.m.
(vii) When the police team, including the Investigating
Officer PW-16, PW-15, PW-14, PW-12 and the SDM
PW-4 visited the spot the appellant accused was
present at the said spot. The crime team had visited
the spot at 6.45 a.m.
(viii) The relationship between the appellant accused and
the wife Rozina was strained and antagonistic. In
other words, motive is also there.
(ix) The police had seized electricity wire from the room,
which was used for the commission of offence as
has been opined and stated in the subsequent post
mortem opinion Exhibit PW-5/B.
21. Keeping in view the aforesaid facts, it is held that
chain of circumstances, when examined together and in a
cumulative manner, point the finger of guilt and show that
commission of offence was by the appellant. They also
exclude the possibility of any other third person being
involved in the said offence.
22. In view of the aforesaid discussion, we do not find
any merit in the present appeal and the same is
dismissed. Conviction and the sentence awarded to the
appellant is confirmed.
SANJIV KHANNA, J.
S.P. GARG, J.
AUGUST 13, 2012
VKR
