Laxman Yadav vs State
2013 Latest Caselaw 4152 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment reserved on: 09.09.2013
                                     Judgment delivered on: 13.09.2013
+      CRL.A. 1235/2010
       LAXMAN YADAV
                                                             ..... Appellant
                            Through       Ms. Nandita Rao, Adv.

                            versus

       STATE.
                                                            ..... Respondent
                            Through       Mr. Sunil Sharma, Adv. for the
                                          State.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The accused had been charge-sheeted and ultimately found

guilty for having committed the murder of his deceased wife Sita Devi.

The date of offence is 28.06.2007; Sita Devi was found lying dead in a

pool of blood on the second floor of her matrimonial home i.e. house

No. M-452, Shakurpur, Delhi. She had been stabbed twice under her

chest. Her dead body had been discovered by her landlady Hardevi

(PW-5) who on the fateful day noticed that there was no light switched

on in the room; she pushed open the door; on switching on the light, she

found the dead body of the victim lying on the floor.

2 At 9.25 PM of 28.06.2007 on DD No. 31-A (Ex.PW-19/A) was

recorded in the local police station Saraswati Vihar which information

had been conveyed by Savitri Devi (PW-4) (who in turn had been

informed by Har Devi-PW-5 landlady of the deceased) and which was

to the effect that her tenant Sita Devi had been murdered. This call had

been made from the PCO of Mukesh Kumar Mishra (PW-3).

3 Rukka was received by SI Braham Prakash (PW-13A) pursuant

to which the FIR (Ex.PW-13/A) was registered under Section 302 of the

Indian Penal Code (IPC).

4 Inspector Dharambir Singh (PW-19), SI R.K. Mann (PW-16)

along with constable Ratipal (PW-9) reached the spot. The matrimonial

home of the victim and the appellant was on the second floor of the

house. The dead body of the victim was found lying on the floor; two

sharp wound injuries were noted between the breast and the abdomen;

blood was lying scattered on the clothes, bed-sheets and pillow. Pieces

of broken bangles were also lying near the dead body.

5 Crime team was summoned. SI Matadin (PW-6) along with

photographer constable Dalbir Singh (PW-10) reached the spot; 17

photographs were taken of the scene of crime of which one negative was

washed out ; 16 positives were proved as Ex.PW10/1 to Ex.PW10/16

and the 17 negatives were proved as Ex.PW-10/17 to Ex.PW10/33.

Crime team report (Ex.PW-6/A) was prepared.

6 Exhibits were lifted from the spot which were taken into

possession vide seizure memo Ex.PW-16/A. Scaled site plan Ex.PW-

7/A was prepared by SI Manohar Lal (PW-7); the rough site plan

initially prepared by the IO was proved as Ex.PW-20/C.

7 The version of the prosecution was unfolded in the statement of

the witnesses. It was revealed that the appellant was an auto rickshaw

driver who used to ply the auto of his employer Sanjay (PW12) during

the night time; PW12 was driving the auto during the day. Dev Chander

Yadav (PW1) was the brother of the victim. His testimony was to the

effect that his sister was married to the appellant about 8-9 years ago;

the couple was initially living at village Madhiya, Bihar; no child was

born out of their wedlock; the accused used to beat his sister right from

the inception of the marriage; there were demands of a T.V. and a

motor-cycle; his sister was turned out from the matrimonial home. Just

two months prior to the incident, a panchayat was organised and the

appellant apologized for his acts and promised to keep his sister happy

pursuant to which on the intervention of the panchayat, his sister had

been sent back to the matrimonial home. She stayed in Bihar for one

month and thereafter the couple went to Delhi and started living at

Shakarpur. Ram Chander (PW2) cousin of the victim identified her dead

body.

8 Post-mortem on the deceased was conducted on 05.07.2007 i.e.

seven days after the date of the incident by Dr. Kulbhushan Goel (PW-

13) of the B.J.R.M. Hospital. Two external injuries were noted upon her

person. They read as under:-

"External Injuries:- Dried blood seen at upper abdomen.

1. Incised penetrating wound 2.5 X 1.2 X ? cm placed vertically and slight oblique over epigastria region about 3.5 CM Rt. to midline and about 4 CM below xiphoid process. Lower angle of the wound is more acute than the upper one.

2. Incised penetrating wound 3 X 1.3 X ? CM vertically slightly oblique over epigastria region about 2.5 CM Lt. to the midline and about 4 CM below xiphoid. Lower angle is more acute than the upper angle."

9 Cause of death was hemorrhage shock consequent upon injuries

to liver and stomach. All injuries were anti mortem in nature caused by

sharp cutting penetrating weapon. Abdominal injuries No. 1 & 2

mentioned in the post-mortem report were sufficient to cause death in

ordinary course of nature; mode of death reported was homicidal; post

mortem report had been proved as Ex. PW-13/A.

10 The appellant had absconded. He was not available. In fact in

his statement under Section 313 of the Cr.PC his version in answer to

question No. 12 was that on 27.06.2007 in the morning he had left the

TSR with its owner (PW-12); he had lunch at his home and at about

01:00 PM after informing his wife he went to Gannaur Mandi looking

for a job stating that he would return back on 28.06.2007; on 28.06.2007

when at about 10:30 PM he returned to his house; he saw neighbours

and police gypsies collected at the spot; he was informed that his wife

has been murdered; the appellant went to his friend's house (Sunil) who

was residing in D-Block; on the next day, his friend took him to a

lawyer at Tis Hazari Courts where he was advised not to go back as the

police was searching for him; he thereafter surrendered before the Court.

11 The appellant was arrested on the same day i.e. on 13.01.2008

vide arrest memo Ex.PW-11/A. He made a disclosure statement Ex.PW-

11/C. Pursuant to this disclosure statement, he got recovered the weapon

of offence which he had allegedly used in the crime; it was a knife. This

recovery was effected from a park behind the cremation ground where it

had been hidden behind bricks and stones. It was taken into possession

vide Ex.PW-11/E. This weapon was sent for a subsequent opinion to the

doctor who after seeing the knife had opined that injuries No. 1 & 2

noted in the post-mortem report (Ex.PW-13/A) could have been caused

by the said knife. The CFSL vide its report Ex.PW-17/A and

Ex.PW17-B had also opined human blood on this weapon.

12 This was the sum total of evidence collected by the prosecution.

13 As noted supra, in the statement of the appellant recorded under

Section 313 of the Cr.PC his version was that he was living happily with

his wife; he was a loving husband; his signatures were obtained on blank

papers; he is innocent and in no way connected with the crime.

14       No evidence was however led in defence.

15       The trial Court vide the impugned judgment convicted the

appellant for the offence under Section 302 of the IPC; it had noted that

apart from the fact that it being an admitted position that the murder had

been committed in the matrimonial home, the appellant having

absconded for more than seven months coupled with the motive which

has been elicited in the version of the prosecution which was to the

effect that the parties had been married for about 8-9 years but no child

had been born out of their wedlock which was always a bone of

contention between the married couple coupled with the fact that the

appellant had also got recovered the weapon of offence were the

cumulative circumstances forming a chain of link evidence which had

ultimately led to his conviction. Vide order of sentence dated

30.09.2010, the appellant had been sentenced to undergo imprisonment

for life and to pay a fine of Rs.5,000/-; in default of payment of fine to

further undergo RI for six months.

16 On behalf of the appellant, arguments had been addressed at

length. Learned counsel for the appellant points out that the cardinal

principal of criminal jurisprudence is that the prosecution must stand on

its own legs to prove the guilt of the accused; there are clear missing

gaps in this link evidence which has been sought to be established by the

prosecution; the trial Judge has failed to note that it was the appellant

who had himself surrendered before the Court; his explanation is

satisfactory; he had in his statement under Section 313 of the Cr.PC

candidly and fairly admitted that when he reached the spot at 10:30 PM

on the fateful day of 28.06.2007, he learnt about the murder of his wife

and noticed that his house had been surrounded by the police; at this

stage, he had little choice but to leave the spot as he was under

apprehension of arrest and that is why on legal advice from his lawyer,

he remained missing; this missing was only for the aforesaid reason. The

prosecution had failed to establish that there was any quarrel or tiff

between the married couple; the parties were in fact living happily.

Attention has been drawn to the testimony of PW-5 who had stated that

the married couple never used to fight with one another; submission

being that this testimony of the landlady who was living on the ground

floor of the same building and being aware of the relationship between

the parties and as such the theory of motive as set up by the prosecution

stands diminished; motive could not be proved; the appellant was in fact

not in the house on the date of the incident; no witness has deposed to

the said effect; presence of the appellant in the house on the fateful day

has not been proved. On no count has the prosecution been able to prove

its case. The appellant is entitled for benefit of doubt and a consequent

acquittal.

17 Submissions have been countered by the learned APP. It is

pointed out that the all links in the chain of evidence stand complete.

Not only has the prosecution through the version of PW-1 established

that the parties had a marital discard and the bone of contention being

the fact that the even after 8-9 years of marriage, they did not have a

child, PW-12 has also confirmed the version of the prosecution that on

28.06.2007, the appellant has returned the TSR to him in the morning;

the married couple being alone in the room at the time of the incident, it

was for the appellant to give an explanation as to how his wife stood

murdered and this was especially so in view of the fact that there was no

forced entry or breaking open of the room door which is evident from

the version of PW-5 who had stated that when she pushed the door it

opened. On no count, does the impugned judgment call for any

interference.

18 We have appreciated the arguments of the learned counsel for

the parties and perused the record.

19 It is an admitted position that Sita Devi had been murdered

within the four corners of her matrimonial home. The post mortem

conducted on 04.07.2007 had approximated the death seven days ago;

exact time of death was however not known.

20 PW-12 Sanjay the employer of the appellant has on oath

deposed that he was the owner of TSR No. DL-1R F 7033; he used to

drive the TSR during the day time and at night, the appellant Laxman

used to drive it. He has further deposed that the TSR was returned by the

appellant in the morning after washing the same; the key and the money

was also returned and thereafter the accused did not come back to take

the TSR for driving as he earlier used to do during the night shift. This

witness was silent on the date when the TSR was returned to him but in

his cross-examination by the learned APP, he clarified that due to lapse

of time, he could not recollect the date but TSR had been returned back

to him by the appellant on the morning of 28.06.2007. Vehement

submission of the learned counsel for the appellant that this witness had

been cross-examined by the learned APP and being a hostile witness, no

reliance can be placed upon his version is a submission without any

merit. Learned Prosecutor had taken permission of the Court only to

seek a clarification on the date which was subsequently clarified with a

further rider that because of lapse of time, PW-12 could not recollect the

date. Nothing has also been elicited in his cross-examination to discredit

him. In fact this witness appears to be natural and spontaneous; he is

definitely not a tutored witness; full credence has to be given to his

evidence. This argument of the learned counsel for the appellant is thus

rejected.

21 PW-5 Har Devi was the landlady of the one room

accommodation which had been rented out to the appellant and the

victim. In her examination in chief, she has deposed that the room had

been rented to the couple about 16-17 days prior to the incident; the

couple had no child; she was not aware of the relations between the

parties; the appellant used to stay at home during day time. In the

evening at about 07:00-08:00 PM, she saw that there was no light in the

room of the appellant and Sita Devi; she went up-stairs and called Sita

by name; on opening the door, she found Sita lying dead on the floor

with broken bangles pieces scattered around her. This witness had been

declared hostile and had been permitted to be cross-examined by the

learned APP on certain aspects; material aspect being that she had never

heard the couple fight or that the bone of contention was not the fact that

the couple did not have a child; this version however was in conflict

with the version which she had given before the police (Ex.PW-5/D1).

This witness was also hostile on the fact that she had seen the appellant

return home at about 08:00-09:00 AM of 28.06.2007; she denied the

suggestion that she was deposing falsely as she has been won-over by

the accused. The defence counsel chose not to cross-examine the

witness and this was obviously for the reason that this witness has been

won-over.

22 There is no rule of law which states that evidence of a hostile

witness is to be rejected enbloc; it is not to be washed off the record

altogether. It is for the Judge to consider in each case whether as a result

of such cross-examination and contradiction, the witness has been

altogether discredited or not. Thus, while ignoring that part of the

testimony of PW-5 which on oath in Court was in contrast with her

version (Ex.PW-5/D1) yet on other aspects she has corroborated her

version (Ex.PW-5/D1) on oath in Court. This version establishes that the

appellant used to drive the TSR in the night and during the day, he used

to stay at home; this was his routine. Also admittedly it was PW-5 who

had first noted the dead body of Sita as there was no light in the room

and on switching on the light, she had noticed Sita lying dead on the

floor. This was around 7-8 PM; she had informed her employer Savitri

(PW-4) who rung up the police from the booth of Mukesh Kumar

Mishra (PW-3).

23 A co-joint reading of the versions of PW-12 and PW-5 thus

evidence that on the morning of 28.06.2007 after returning the TSR to

his employer (PW-12), as per practice, the appellant returned back to his

house. He must have remained in the house during the day.

24 The fact that the appellant used to remain in the house in the day

and used to ply the TSR in the night shift has also been admitted by the

appellant himself in his statement under Section 313 of the Cr.PC. His

version in this statement is to the effect that he used to do night duty

which was not liked by his wife. His further explanation is to the effect

that one day prior to the incident i.e. on 27.06.2007, he had left the TSR

in the morning with PW-12 and after having lunch, he went to Gannaur

Mandi looking for a job telling his wife that he would return back on

28.06.2007.

25 This explanation is palpably false as it is clearly contrary and in

conflict with the version of PW-12 and PW-12 being an independent

witness and in fact known to the appellant would have no reason to have

given a wrong date and deposed falsely against him. The version of PW-

12 had in fact established that the appellant had returned the TSR to him

in the morning of 28.06.2007. The further statement of the appellant that

he had gone to Gannaur Mandi on 27.06.2007 is also false as if this was

the case nothing prevented him from bringing evidence in defence to

establish this submission. That apart this defence had surfaced for the

first time only in his statement under Section 313 of the Cr.PC which

was recorded on 22.09.2010. No suggestion has been given to any of the

witnesses of the prosecution; who had been examined prior in time that

he was not present in the house on 28.06.2007 for the reason that he had

gone to Gannaur Mandi on 27.06.2007 looking for a job. Obviously this

defence had been set up on legal advice at a later date and not matching

with the earlier cross-examination of the witnesses of the prosecution,

this Court is constrained to hold that this explanation is wholly sham

and bogus.

26 Law is well settled. A false explanation by an accused to build

up a defence which is otherwise contrary to the established version of

the prosecution leads to drawing of an adverse inference against such an

accused.

27 The Apex Court as way back as in AIR 2003 SC 258

(Anthony D'Souza Vs. State of Karnataka), had held as under:-

"By now it is well established principle of law that in a case of circumstantial evidence where an accused offers false answer in his examination under S. 313 against the established facts that can be counted as providing a missing link for completing the chain.

28 The presence of the appellant in the matrimonial home on the

fateful day is thus established. As noted supra, the murder had taken

place in their one room tenement. The victim had died pursuant to two

stab wounds which had been inflicted upon her. Both the wounds were

in the chest area. This was not a case where there was any forced entry

in the house or there was any evidence of a ransacking which could

suggest that a third person had entered the house for some other motive.

The room was also not locked. PW-5 has been categorical on this

submission; when at 7-8 PM, she saw no light in the room, she pushed

open the door and on opening it, she found the dead body of the victim

lying on the floor; blood was scattered all over the clothes and broken

bangles of the victim were lying on the floor. The murder had taken

placed obviously prior in time i.e. prior to 7 PM.

29 In these circumstances, who was to answer and explain the

murder of the victim? It has to be none other than the appellant; he was

the only person other than the victim who was the occupant of this

room.

30 Section 106 of the IPC specifically postulates that where any

fact is especially within the knowledge of any person, the burden of

proving it is upon him.

31 Section 106 of the Evidence Act reads as under:-

106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations

32 It was for the appellant to explain and answer as to how his wife

had died; as already noted his sham and bogus explanation was not only

misleading but clearly untrustworthy.

33 In (2003) 7 SCC 37 Babu S/o Raveendran Vs. Babu S/o

Bahuleyan & Anr the Supreme Court had noted the solitary

circumstance was of the accused and the deceased being last seen in the

company of each other. The relationship of the deceased and the accused

was of a husband and wife. The place of death was their matrimonial

home. The place where the dead body was found was also the

matrimonial home. There was no evidence of an intruder; it was held

that in such a situation, the circumstance leadings to the death of the

deceased stood shifted to be explained by the accused, for it is only he

who is to be expected to know the manner and the circumstances under

which his wife had died.

34 The conduct of the appellant also speaks volumes. It was not

only unnatural and unbecoming of a husband but to put it mildly it was

preposterous. As per his version (in his statement under Section 313 of

the Cr.PC), when he came back to the matrimonial home in the morning

of 28.06.2007; he learnt that his wife had been murdered. Instead of

attempting to find out as to how the murder had taken place and who

had committed this dastardly act upon his wife for which a normal

husband would have been grieved and sorrowful, the appellant choose to

abscond from the scene. He did not even go to the matrimonial home.

Instead, he went to his friend Sunil who lived in the adjacent block.

Sunil was also not examined in defence. Sunil advised him to visit a

lawyer. This was on the next day. That whole day, the appellant stayed

in the house of Sunil. This behaviour was nothing but the conduct of a

guilty mind. The version of the appellant that he was a loving and

affectionate husband is clearly not borne out from this conduct.

Thereafter the appellant choose not to return to the matrimonial home

and in fact evaded the police for almost seven months. During this

period, the police was obviously searching for him and coercive steps

had also been taken against him. It was only thereafter that on

13.01.2008 he surrendered before the Court. It was obviously for the

reason that the appellant had now little choice left in the matter.

35 The appellant was arrested on the same day i.e. on 13.01.2008.

Pursuant to his disclosure statement, he had got recovered the weapon of

offence which was a knife from Tikona park behind the cremation

ground situated near the Britannia Chowk, M-Block, Shakarpur, Delhi.

This knife was found wrapped in a polythene concealed under the bricks

and stones. Learned defence counsel has vehemently argued that

Investigation Officer (PW-20) is not clear as to from where from the

recovery was effected; in one part of his testimony he has stated that the

recovery was effected from tikona park and in another part of his

testimony he has mentioned that it was from the cremation ground; this

version cannot be relied upon. Further argument being that no public

witness had also been joined.

36 Both these arguments have been appreciated in the light of the

facts of the case. The recovery memo has been proved as Ex.PW-11/E.

PW-11 along with PW-20 had accompanied the appellant at the time

when the recovery had been effected. Both these witnesses have

categorically stated that public witnesses had been asked to join the

investigation but none agreed. It is a hard reality that public witnesses

do shy from joining police investigation; this is nothing unusual.

37 The Apex Court in this context in 2001 (9) SCC 571 P.P.

Beeran Vs. State of Kerala has noted that non-joining of a public witness

will not demolish the recovery.

38 Both PW-11 and PW-20 have also been categorical in stating

that the recovery was effected from the park which was near the

Shamshan Ghat i.e. the cremation ground. In no part of the versions

have they shifted their stand. The weapon of offence was in fact

concealed under the earth behind bricks and it was only after the bricks

and stones had been removed that the weapon could be recovered. It was

wrapped in a polythene. Both the witnesses are trustworthy on this

point. Recovery stands proved.

39 PW-13 the doctor had also opined that the injuries as noted in

the post-mortem could have been caused by this weapon. The CFSL

vide its report Ex.PW-17/A had also noted that the weapon of offence

contained human blood.

40 The motive for the crime appears to be the bone of contention

which the couple was nursing for the reason they could not have a child

despite the fact that they had been married for 8-9 years; it being an

admitted position that the couple was childless. PW-1, the brother of the

appellant had deposed that the parties were initially staying in Bihar;

differences had arisen between them and it was only two months prior to

the date of incident that his sister (the victim) had rejoined the appellant

in the matrimonial home. PW-1 had also deposed that two months prior

to the incident a panchayat had been held and it was only on the

intervention of the panchayat that his sister had agreed to rejoin her

husband. This was at Bihar where they stayed for one month and it was

only one month prior to the date of incident that the couple came to

Delhi. This version of PW-1 is also corroborated by the version of PW-5

who has stated that she has given the room on rent to the appellant just

20 days ago. Nothing has been elicited in the cross-examination of

PW-1 which could discredit this version.

41 As noted supra, the submission of the appellant that no

panchayat had in fact been held could not be dis-believed for the reason

that if this has been the position, nothing prevented the appellant from

calling any member of panchayat (as the panchayat was held in the

village of the appellant himself); he however chose not to do so. The

appellant in fact had again tried to mislead the Court. In the cross-

examination of PW-1, he had sought to set up a defence that his brother-

in-law has asked him for a loan of Rs.10,000/- which he could not

honour and this was the reason why he had been falsely implicated by

PW-1.

42 This being a case of circumstantial evidence and the law on this

aspect being clear, this Court notes that all the links in the chain of

evidence stand established. The single hypothesis of the guilt of the

accused stand proved. The hypothesis of his innocence stands excluded.

The conviction of the appellant calls for no interference. The appeal is

without any merit. Dismissed.

INDERMEET KAUR, J

KAILASH GAMBHIR, J SEPTEMBER 13, 2013 A