Delhi High Court

Satbir Singh vs State on 3 December, 2012

Author: Sanjiv Khanna

*          IN THE HIGH COURT OF DELHI AT NEW DELHI
+                     Crl. Appeal No. 164/2012

                                    Reserved on: 1st November, 2012
%                                Date of Decision: 03rd December, 2012

SATBIR SINGH                                     ....Appellant
          Through          Mr. Joginder Tuli and Mr. Kuldeep Singh,
                           Advocates.

                  Versus

STATE                                               ...Respondent
                 Through   Mr. Sanjay Lao, APP.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE S. P. GARG

SANJIV KHANNA, J.

What was presented as a simple case of robbery, where a gang

attacked a couple travelling late night and murdered the wife, stands

obfuscated with the prosecution allegation that it is rather a case of

disgruntled husband murdering his wife and feigning his defense. The

husband blames the death of his wife on three-four looters who attacked

them with gandasas outside Nala road, Jharoda, Delhi. Finding these

vagaries to be patently absurd, the prosecution argues that it is a case of

murder by degenerated husband who now uses subterfuge to avoid

incarceration. In this imbroglio we are required to determine in this case

which has come for appeal from Session Case No. 123/2010, arising out

of FIR No. 226/2010, wherein, by judgment dated 12th December, 2011

the appellant has been convicted under Section 302 IPC and vide order

of sentence dated 23rd December 2011, he has been sentenced to

Rigorous Imprisonment for life and fine of Rs. 10,000/-, in default of

payment of fine, he is to undergo SI for six months. Under Section 498A

IPC, the appellant has been convicted and sentenced to Rigorous

Imprisonment for one year and fine of Rs 5,000/-, in default of which, he

is to undergo SI for three months.

Homicidal death and Injuries on the deceased.

2. It remains undisputed that the deceased Beena, wife of the

appellant, died a homicidal death, in the intervening night of 28th - 29th

July, 2010. At about 1.30 A.M. on 29th July, 2010, she was found dead in

a pit at Jharoda Pusta Nala Road. Dr. Rabindra Kumar (PW-2), who

proved MLC Ex. PW2/A, had examined her in the casualty ward of

Aruna Asaf Ali Hospital, Rajpur Road, New Delhi. The MLC, recorded

at 3.30 A.M., mentions that the patient was brought unconscious and did

not respond to any stimulus. Heart sound was not audible and no blood

pressure was recordable. At 3.35 A.M. she was declared to have been

brought dead. The Post Mortem Report (Ex. PW3/A), conducted by Dr.

Akash Jhanjee (PW-3), Jr. Specialist in Forensic Medicines, delineates

the cause of death to be cerebral damage to the head, consequent upon

blunt force impact, which was sufficient to cause death in the ordinary

course of nature. The deceased suffered as many as 20 injuries and all

but Injury No. 14 were caused by blunt force impact. Injury No. 14 i.e.

linear abrasion was caused by a sharp pointed object. The injuries are

as below:-

1. Lacerated wound, 3 x 1.5 cm scalp layers over left side parietal region lying 7 cm above top of left side ear, with surrounding contusions reddish 6 x 4 cm.

2. Abrasion, reddish, 2 x 2 cm upper surface of left shoulder region.

3. Abrasion, reddish, 3 x 2 cm over upper half front of left side chest region, lying 2 cm below the left of the supra sternal notch area.

4. Abrasion, reddish 1 x 0.5 cm on right side face just outer to right nostril opening.

5. Contusion abrasion, reddish, 3 x 2 cm over inner front of lower half of left thigh region.

6. Contusion, reddish 2 x 2 cm in front of upper half of left leg region.

7. Contusion, reddish, 3 x 3 cm in front of lower half of right leg region.

8. Contusion, reddish, 3 x 3 cm in front of lower half of right leg region.

9. Contusion, swelling, reddish 3.8 cm x 2 cm over back middle half of right forearm region.

10.Contusion, reddish 2 x 2 cm back of lower half of right forearm region.

11.Abrasion, reddish, 2 x 0.6 cm on outer half of right knee region.

12.Abrasion, reddish, 3 x 1 cm over back surface of middle half of right thigh region.

13.Contusion, reddish, 3 x 2 cm over upper half of front of left side neck.

14.Linear abrasion over outer front of upper half of right arm region.

15.Contusion, reddish, 2 x 2 cm over out front of middle half of left arm region.

16.Contusion, reddish, 2 x 2 cm on back of middle half of forearm region

17.Contusion, reddish, 2 x 2 cm over back surface of left hand region lying in line with knuckle of middle finger.

18.Contusion, reddish, 2 x 1 cm over left chin region of face, lying 1.5 cm below left angle of mouth region.

19.Contusion, reddish, 4 x 3 cm upper surface of right shoulder region.

20.Contusion, swelling, reddish 3 x 3 cm over right side parietal region of head lying 4.7 cm above top of left ear opening level.

Cause of injuries or who caused them.

3. Beena‟s dead body was found in a pit, on the Jharoda Pusta Nala,

by Constable Shatrujeet (PW-21) who was on duty to patrol that night.

He saw a motor cycle lying on the road and noticed a male and female

lying in a pit "gadda/small khaee" nearby. A call to number 100 was

made and SI Kishore Kumar (PW-22) arrived at the crime spot. It is an

accepted position that the man lying there was the appellant Satbir and

the motorcycle found belonged to him. Statement of PW-21, to this

effect, stands corroborated by Insp. Shiv Dayal (PW-23), SI Sanjay

Kumar (PW-17), Constable Ct. Satyavir Singh (PW-20) and SI Kishore

Kumar (PW-22).

(i) Conduct of the appellant.

4. Kiran Devi (PW-7), aunt "mausi" of the deceased, avers that, on

28th July, 2010, the appellant, along with the deceased, dined at her

house, at Balswara Dairy, New Delhi. PW-7 states that the two had

come to her house unannounced, at about 7.00 P.M and this was

appellant‟s first visit to her residence, with Beena, after their marriage.

The two left, at about 10.15/10.30 P.M., and next morning she was

intimated that Beena had expired. PW-7 says that she had requested

them to stay over, at night, but accused Satbir insisted against this. In the

cross-examination, however, it was revealed that PW-7 had only a single

room, in her house.

5. The appellant accepts aforesaid visit to residence of PW-7 and

their departure at 10.15/10.30 PM to be true but disputes his subsequent

visit to Jai Lal Kumar PW-1‟s house. Jai Lal Kumar (PW-1) was a co-

worker of the appellant in a factory, at Wazirpur Industrial Estate, New

Delhi. PW-1 states that at 10.30 P.M., on 28th July, 2010, the appellant

called him, on PW-1‟s telephone number 9540962026, and intimated

that he would be paying a visit. At about 10.40 P.M., the appellant came

with a lady who was introduced as his wife Meena (sic Beena), on a

motorcycle. The two stayed, for 15-20 minutes, and left at around 11.00

P.M. Since the appellant disputes paying PW-1 a visit or even calling

him, PW-1 was extensively cross-examined. We are inclined to accept

PW-1‟s statement because he is an independent witness, and therefore,

lacks motive to falsely implicate the appellant. More importantly, the

fact that PW-1 did receive a call from the appellant is established

through call details ( Ex. PW14/F1 & F2 and PW14/E1 to E4), certified

under Section 65 B of the Evidence Act (Ex. PW14/G), which stand

proved by Ajit Singh (PW-14) Assistant Nodal Officer, Idea Cellular.

Hence, it is discernible that appellant left PW-7‟s residence, late night, at

around 10.30 P.M. and, thereafter, went to PW-1‟s residence for 15-20

minutes, with his wife, and left around 11.00 P.M.

6. Thereafter, their motorcycle was found lying on the unpaved or

"kaccha" road, similar to a service lane. The site plans (Ex. PW15/A and

PW 23/B) have been proved by (PW-15) SI Mahesh Kumar and (PW-

23) Inspector Shiv Dayal. The isolated road was next to a vacant land,

beyond which were Delhi Jal Board Pipelines, on one side, and a ganda

nala on another. At night, the road was desolate with few travelers using

the said road. Interestingly, the scaled site plan (Ex. PW15/A) also

shows an outer ring road, which is nearby, where vehicles generally ply

round the clock. Being a main road, it was frequented by public even at

night time. However, the appellant did not take this outer ring road but

an inside bylane which was an unpaved/"kaccha" road and, therefore,

secluded.

(ii) Differences between the appellant and Beena

7. The appellant married Beena on 31st November, 2008. The

appellant repudiates having any differences, with Beena and her family,

or that there was a demand for dowry. Relatives of Beena and the police

officials, however, state to the contrary. Mahender Singh (PW-5), father

of Beena, avers that, 2-3 months post the marriage, the appellant started

quarreling with Beena. He often harassed her, demanding dowry of

Rupees One Lakh to start his business. PW-5 paid Rs 5,000/-, Rs.6,000/-

and Rs.10,000/-, on different occasions, to meet this demand. However,

the appellant was not satisfied and once had even physically assaulted

Beena, injuring her eyes and hand. On this, Beena had returned to her

parental house and PW-5‟s brother had taken her to their native village

for treatment. 5-6 days after her return, Satbir came to take Beena and

the dispute was discussed. Heated arguments took place on which Beena

intervened and requested that she should be sent with the appellant. One

or one and a half months subsequent to Beena‟s return to her

matrimonial home, Beena was murdered. PW-5 accepts that, when

Beena was alive, no police report, against the appellant, was filed.

8. Kamlesh (PW-6), mother of Beena, reiterated that Beena suffered

mental and physical harassment in her matrimonial home. Demand for

dowry were constantly made and Rs 21,000/-, in toto, were paid to the

accused. Still harassment continued and Beena was battered, by Satbir,

leading to hand and eye injury on which Beena was brought back home

and sent to native village for medical aid. Ultimately, Beena returned to

Satbir‟s house and, on 29th July, 2010, at about 3.00 A.M., a police

officer called and apprised them about the said incident. In the cross-

examination, she states that Jai Narain had acted as a mediator, in the

marriage between the appellant and Beena, and they had not lodged any

formal complaint against Satbir, or any of his family members, in the

Women Commission/Women Cell or to any other authority.

9. Basant Chauhan (PW-9), brother of Beena, deposed on similar

lines regarding dowry demand of Rs 1 Lakh, some money paid on three

occasions to the appellant and resultant harassment. PW-6 visited her,

before Raksha Bandhan, with intention to take her back to her parental

house for the festival, but appellant‟s family refused stating that the

appellant would be leaving for „Kavad‟ yatra. PW-9 accepted that his

family had not filed any complaint, against appellant or his family, at

CAW Cell or any other authority. Rinku Singh (PW-12), second brother

of the deceased, avers that the appellant did not like Beena and used to

beat her. Though Rs.5,000/-, Rs.6,000/- and Rs.10,000/- were given to

the appellant but his demand for Rs one lakh was not fulfilled, therefore,

Beena was physically assaulted and her arm was fractured. In the cross-

examination, PW-12 was confronted with his Section 161 Cr.P.C.

statement where it is not stated that payment of Rs.21,000/-, on three

occasions, were made or that Satbir, and his family members, had

threatened his sister or that the appellant had caused injuries, on Beena‟s

hand. He accepted not lodging any formal complaint.

10. It is discernible from the aforesaid statement of Beena‟s family

members that the appellant did not have cordial relationship with his

wife Beena. The marriage was solemnized, not long before the incident,

on 30th November, 2008. In spite of blatant differences and physical

abuse, Beena had to reside with the appellant, in the matrimonial home,

and in these circumstances it might not have been appropriate for her

family members to lodge a formal complaint. Therefore, we do not think

that failure to report, to an authority or police, dents their statements.

11. Ajay Kumar Arora (PW-13) who was posted as Executive

Magistrate, Civil Lines, North District states that on 29th July 2010, at

about 11.00 A.M., he received information, from S.I. Sanjay Kumar

(PW-17), PS Burari, that one female had expired and her body was

preserved, at Subzi Mandi Mortuary. The police was suspicious that it

was a case of murder committed by her husband Satbir. At 3.00 P.M.,

he received another call intimating that the deceased‟s family had

reached and, at 4.00 P.M., he reached Subzi Mandi Mortuary and met

the deceased‟s parents. Deceased‟s father, (PW-5) Mahender Singh‟s

statement (Ex. PW 5/A) and deceased‟s mother (PW-6) Kamlesh‟s

statement (Ex. PW 6/A) was recorded where it is apparent that they

suspected the appellant Satbir, right from the very beginning, and had

clearly implicated him.

(iii) Contentions that the appellant was unconscious and was

injured by third persons.

12. Appellant‟s counsel, relying upon MLC (Ex. PW4/A), submits

that the appellant too was found unconscious in the pit, with deceased

Beena. The MLC records that the appellant was brought to Hindu Rao

Hospital, in a PCR Van, with alleged history of physical assault. It

mentions that the patient had history of unconsciousness and nose

bleeding. Initially in the MLC (Ex. PW4/A) words "RTA" (Road

Transport Accident) were written which were scored off and word

"assault" was inserted. The MLC records the general condition of the

appellant as - "fair, conscious, oriented with no active bleeding". The

police version is that the appellant, after killing his wife Beena,

deliberately gave himself minor external injuries and, on arrival of the

police, pretended to be unconscious to appear as a victim and not the

perpetrator. Prosecution rightly points out that the MLC (Ex. PW4/A)

states that the appellant had multiple superficial bruises, near the

abdomen, right side of the chest and one lacerated wound near forehead.

But when one compares these wounds, with wounds and injuries on the

deceased, the difference is stark. While the deceased suffered around

20 injuries and was badly beaten up, the appellant sustained only minor

and superficial abrasions/cuts.

13. Learned counsel for the appellant states that the appellant was

found unconscious which is recorded in the PCR record (Ex. PW11/A).

To be precise, the PCR information states that the boy was in semi-

conscious condition (behoshi ke halat mein tha). PW-21, in his

examination in chief, states the appellant to be blinking his eyes and

appearing to be unconscious, on the arrival of the police, at the crime

spot. PW-21 had also noticed that the engine of the motorcycle was not

on, though the back light was. Neither did he see any kavadis, on the

road, and nor any pandal was set up in front of that spot. Const. Satyavir

Singh (PW-20), in his cross-examination, states that no public person

was present, at the spot, and no pandal for kavad devotees was there.

No Kavad devotee could be spotted. He mentions that the SHO had

found a mobile phone and a purse, on the deceased. Insp. Shiv Dayal

(PW-23) reiterated that there was no pandal for kavadiyas, near the

crime spot. He found the dead female to be wearing mangalsutra, chain,

ear, rings and pajeb. Insp. J.S. Mishra (PW-25) who took over the

investigation, from SHO Shiv Dayal, in his cross-examination, states

that he had interrogated Satbir at about 2.00 P.M. on 30th July, 2010.

Initially Satbir was evasive but when he was confronted with facts, but

he ultimately confessed. The confession is inadmissible and has to be

ignored. In his cross-examination, he clearly rules out loot, by 2-3

motorcycle riders, as cause of Beena‟s death because all the valuable

articles were intact on the body of the deceased, as well as, the accused.

14. Appellant Satbir Singh, in his Section 313 statement under

C.r.P.C., accepts that he was driving the motor cycle with Beena on the

pillion seat, in the night of 28th/ 29th July, 2010. He admits that his wife

was found dead, in a pit, the same night. In his Section 313 Cr.P.C

statement, he states as under:-

"Q.16. It is further in evidence against you that you took Beena to his mausi‟s house and while coming back to matrimonial home on the way in a jungle, Beena was killed by you. In the police station, you told to the police that you had killed Beena in presence of PW5 and PW9. What have you to say?

Ans. It is incorrect and denied. It is incorrect that I killed Beena. I have too much love and affection for Beena. I did not kill Beena so I did not tell to police in the presence of PW5 and PW9. It is submitted that Beena and I was attacked by three-four persons. We both sustained various injuries. By the grace of god, my life was saved due to timely treatment. Due to delay in treatment and due to various injuries given by culprits, life of my wife Beena could not be saved.

Xxxxxxx

Q. 36. It is further in evidence against you that PW21/Ct. Shatrujeet produced you before PW25/Inspector J.S. Mishra who interrogated you and directed you to join investigation on 30.7.2010. What have you to say?

Ans. It is incorrect and denied. It is wrong and denied that PW21 Shatrujeet produced me before PW25 Inspector J.S. Mishra. It is further wrong and denied that I was interrogated and directed to join investigation on 30.7.2010. It is submitted that when I regained senses in hospital I found Inspector J.S. Mishra, my family members and relatives of Beena. I was got discharged from the hospital by the police and I was straight away taken to police station from hospital. I was not allowed to go anywhere. Police officials did not take me to anywhere. I told the police that I and my wife were attached by three-four persons. They were having dandas. I tried to save myself and my wife but they were more in numbers. I succeeded in hitting one of the culprit and his shirt was torn by me. At that time, I was wearing helmet when they gave blow on my head. Shiv Karadias were passing from there and they tried to save us. Seeing Shiv Kavadias, culprits ran away. Shiv Kavadias also made phone call to police. Thereafter I became unconscious due to bleeding and injuries.

xxxxxx Q. 50. Do you want to say anything else?

Ans. It is submitted that police officials did not do fair investigation. Police officials did not make any attempt to arrest real culprits. If police officials had sent dog squad and done fair investigation, real culprits would have been arrested. Police officials did not do any attempt to arrest the person who was wearing lining shirt. Police officials did not make any effort to enquire Shive Kavadias for arresting real culprits. I am innocent."

15. The prosecution case is that the appellant deliberately chose the

deserted bye-lane, to murder Beena. The fact that the appellant chose

such an isolated lane, to drive home, by itself is not sufficient to

incriminate him but there is other evidence and material. The present

case is premised upon circumstantial evidence. It is a settled position in

law that, in case of circumstantial evidence, the court has to consider the

cumulative effect of the entire evidence, proved by the prosecution, and

then decide upon the matter. It has to be established that the

appellant/accused executed or was involved with the crime. The facts

should exclude possibility of any third person involvement in the crime

which squarely leaves the appellant/accused as the perpetrator.

16. We shall now examine the incriminating evidence proved against

the appellant and the effect thereof. The following facts have been

proved beyond doubt and on cumulative effect thereof we are convinced

that the appellant and no third person is the perpetrator and the appellant

is the person who has committed the offence in question:

(i) The appellant recently got married to Beena on 31st November,

2008, about one and a half years before the date of occurrence but there

were disputes and differences between them as established from the

testimony of PW5, PW6, PW9 and PW12. The appellant had asked for

money from his in-laws and had harassed Beena.

(ii) The appellant and Beena had gone to the residence of PW7 and

after dinner had left her house at Balswara Dairy, New Delhi at

10.15/10.30 PM. Thereafter the appellant went to the house of his co-

worker PW1 and they left his residence at about 11.00 PM on 28 th July,

2010. The appellant delayed their departure for returning home.

(iii) The appellant took a lonely and deserted road in the middle of the

night. He did not drive on the main road which was frequented by the

public even at night.

(iv) PW21 on night patrol duty saw a fallen motor cycle on the road

and thereafter noticed the appellant and the deceased were lying in a pit

at about 1.30 AM on 29th July, 2010. Beena when taken to the hospital

was declared dead and had suffered as many as 20 wounds/abrasions.

The appellant had suffered minor injuries.

(v) The allegation of the prosecution that the appellant had contrived

and feigned unconsciousness, as stated by several police witnesses and

as noticed in paragraph 15 above is supported and corroborated by the

injuries as recorded and noticed in the MLC of the appellant, Ex.

PW4/A.

(vi) As per MLC (PW4/A), the appellant had initially given road

traffic accident as the reason for the injuries on Beena. Subsequently,

this was scored off and the word „assault‟ was inserted. If it was a case

of assault, it is not understood why only superficial injuries were found

on the appellant and grievous and 20 injuries were found on the

deceased Beena. Jewellery and ornaments worn by Beena, were

untouched and were found on her body. Robbery, therefore, is ruled out

and was not the reason or cause behind the crime. The purse and mobile

phone of the deceased were not removed. The story of assault for

robbery is belied and contra-indicated.

(vii) No Kavadias were found at the spot. The plea that kavadias had

saved the appellant is palpably false and incorrect. No one from the

public or kavadias made any phone call to police about any incident or

assault. Police witnesses as noticed in paragraph 15 have categorically

stated that no kavad devotee could be spotted.

17. The statement of the accused u/s 313 and his explanation requires

some consideration. It is not that we are relying upon accused‟s

statement under Section 313 to convict him or are using it as primary

evidence, as the burden to prove the commission of offence is on the

State. Here it is necessary to keep in mind Section 106 of the Evidence

Act which says that when any fact is especially within the knowledge of

any person, the burden of proving that fact is upon him. Illustration (b)

appended to this section throws some light on the content and scope of

this provision and it reads:

"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."

As Supreme Court in State of W.B. v. Mir Mohammad Omar (2000) 8 SCC 382 observed:

"37. The section is not 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 where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference."

Similarly, it was held in Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681:

"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [ 1944 AC 315 : (1944) 2 All ER 13 (HL)] -- quoted with approval by ArijitPasayat, J. in State of Punjab v.Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri) 135] .) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case."