Delhi High Court
Suresh Chand vs State on 21 July, 2014
Author: G. S. Sistani
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 1041/2010
% Judgment Pronounced on 21st July, 2014
SURESH CHAND ..... Appellant
Through: Mr.Ajay Verma, Adv.
versus
STATE ..... Respondent
Through : Ms.Rajdipa Behura, APP for State.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE G.P.MITTAL
G.S.SISTANI, J
1. Challenge in the present appeal is to the judgment dated 16.7.2009 and the
order on sentence dated 31.7.2009 passed by learned Additional Sessions
Judge by which the appellant has been sentenced to imprisonment for life
with fine of Rs.3,000/-, and in default of fine, simple imprisonment for
another period of three months for the offence under Section 302 IPC.
2. The appellant was married to one Ms.Madhu; out of the wedlock four
children were born.
3. The version of the prosecution as noticed by the trial court is that on
26.8.2006 at around 7:28 a.m. an information was received at the Police
Station Ashok Vihar vide DD Nos.10A and 11A about the recovery of a
dead body of one lady lying in Jhuggi No.F-356, Jailerwalan Bagh, Delhi.
The head of deceased Madhu was found crushed and one blood-stained
stone was lying on the table nearby when Inspector S.K. Sharma along
with ASI Balwan reached the spot. Deepak Kumar, son of the deceased
was present at the spot, who informed the police that his father had killed
his mother. Statement of Deepak Kumar was recorded by Inspector S.K.
Sharma. Brother of the deceased and one daughter of the deceased,
Poonam, were also present at the spot. After preparation of the Rukka,
FIR was got registered, crime team was called; spot was inspected;
photographs were taken; a site plan was prepared and blood-stained sheet,
stone and mat below the dead body along with blood samples were seized
from the spot by the I.O. Photograph of the deceased with one Sanjay
was also seized from the spot. The dead body was got identified by
children of the deceased, namely, Deepak Kumar and Poonam.
4. It is the case of the prosecution that the search for the appellant was
started, the police was informed by the brother of the deceased, Prakash
that accused Suresh was sitting near mazaar Jailerwalan Bagh, Delhi,
consequently the accused was apprehended at the instance of Prakash; and
his disclosure statement was recorded. The accused informed that he had
hidden his blood stained clothes under the Charpai at the roof of his
Jhuggi, the clothes were recovered at his instance and seized by the
police. The accused was also got medically examined. Postmortem of the
body of the deceased was conducted on 28.8.2006. The weapon of
offence i.e. stone was also produced before the doctor; the exhibits were
sent to the FSL.
5. The prosecution has examined 17 witnesses. Statement of the accused
was recorded under Section 313 of the Cr.P.C.
6. Counsel for the appellant submits that the judgment passed by the learned
trial court is erroneous, contrary to the facts of the case and not
sustainable in the eyes of law. The trial court has failed to appreciate the
evidence and material on record. It is also the case of the appellant that
the story of the prosecution is false, fictitious and fabricated and the
appellant has been falsely implicated in the case. It is also the case of the
appellant that the judgment is based on conjectures, surmises and
assumptions and not supported from the facts and circumstances of the
case.
7. It is strongly urged before this court that the trial court has wrongly placed
reliance on the evidence of PW-1, Deepak Kumar, whereas both Deepak
Kumar and the appellant were sleeping on the roof of the Jhuggi and
Deepak Kumar was not an eye-witness. It is also submitted before this
court that as per the evidence of Deepak Kumar, after he discovered that
his mother had been brutally murdered, he informed his father, who was
sleeping on the roof top and in case the appellant had committed the
murder, he would have run away from the spot and not come and slept on
the roof. Counsel further submits that the trial court has failed to
appreciate that Poonam, daughter of the deceased was sleeping in the
same Jhuggi on the bed and she did not hear any noise when the deceased
had been murdered. It is further submitted that when the information was
passed to the Police, the appellant was not named as the person who had
killed the deceased Madhu.
8. Learned APP for the State has submitted that the prosecution has been
able to prove its case beyond any shadow of doubt. As per the evidence
of PW-1, Deepak Kumar, son of the deceased, on the night of the incident
his mother and father had quarreled over a boy named Sanjay, who used
to visit their house; his father did not like Sanjay meeting his wife and on
this account there used to be frequent quarrels between his father and
mother. On the fateful night, his parents were quarrelling on the same
issue. PW-1 has also deposed that he had told his father that his mother
was lying dead and his father had simply said „WOH TO AISI HI THI
AUR USKE SATH AISE HI HONA THA‟.
9. Counsel further submits that the trial court has failed to appreciate that the
facts and evidence on record do not conclusively prove the guilt of the
appellant.
10. Counsel further submits that the trial court has failed to take into
consideration that PW-1, Deepak Kumar had noticed the dead-body at
6:00 a.m. and the police was informed around 7:00 a.m., but the daughter,
Poonam was woken up by Police only after 8:00 a.m.
11. Counsel further submits that the conduct of the appellant would show that
he did not run away from the spot. It is also stated that the brother of the
deceased, PW-3, has clearly stated that his sister was of a bad character
and he has also disputed that he was present at the time when the
recoveries were made.
12. Counsel for the appellant further submits that there are many
contradictions in the evidence of the witnesses.
13. Learned counsel for the appellant contends that the judgment and order on
sentence cannot be sustained in the eyes of law as the appellant has been
held guilty on the basis of circumstantial evidence in which the chain of
circumstances is not complete. Moreover the circumstances suggest the
possibility of non-involvement of the appellant in the present case.
14. Learned APP for the State submits that PW-2, who is also the son of the
deceased, had also stated that Sanjay used to come and meet his mother
often at their Jhuggi and on this issue there used to be frequent quarrels
between his parents. Counsel further submits that the photograph of
Sanjay and deceased was also found at the spot, which would show that
there was a strong motive with the appellant for the murder of Madhu,
deceased who was the wife of the appellant.
15. Counsel further submits that the recovery of blood stained clothes was
made on the basis of a disclosure statement made by the appellant. The
recovery was witnessed by PW-3, brother of the deceased and further as
per the FSL report, blood group „A‟ was found on the clothes of the
deceased as also the clothes of the appellant.
16. Learned APP for the State also submits that as per the FSL report, the
blood on the stone as also blood on the appellant‟s and victim‟s clothes
was the same. It is also stated by learned APP for the State that the
evidence of the prosecution and the complete chain of events clearly
establish the guilt of the appellant beyond any reasonable doubt.
17. We have heard learned counsels for the parties and carefully examined the
evidence and the record of the trial court. The appellant has been
convicted by the trial court on the basis of circumstantial evidence.
18. It is the case of the appellant that the appellant has been falsely implicated
in this case and the trial court has wrongly placed reliance on the evidence
of PW-1, Deepak Kumar, the son of the deceased, who was not an eye-
witness. It has also been argued that the appellant was not named in the
information passed on to the Police as to the person who had killed the
deceased. It has also been urged before this Court that the real brother of
the deceased had testified that his sister was of a bad character and he has
not supported the case of the prosecution that he was present at the time
when the recoveries were made from the appellant.
19. PW-1, Deepak Kumar, son of the deceased has testified that he was
residing in Jhuggi along with his brother, two younger sisters and parents.
On the night of the incident, his parents had a quarrel over a boy named,
Sanjay, who used to visit their house, which was not liked by his father;
and his father had asked his mother not to meet Sanjay. It has also been
deposed that his parents would often quarrel over this issue. On the
fateful night, his parents were quarrelling when he went to the roof of the
jhuggi and slept after taking dinner. In the morning he found his mother
dead. The dead body was lying on the floor on a sheet. Face of his
mother was totally crushed and beyond recognition. A stone was also
lying there with blood stains on it. On seeing this, he went to his father,
who was sleeping on a cot on the roof of the jhuggi, and informed him
that his mother was lying dead down-stairs; his father told him that the
deceased was like this and she was suppose to meet the same fate [WOH
TO AISI HI THI AUR USKE SATH AISE HI HONA THA]. He informed
his mausi, Raj Kumari, who came with him and saw the dead body.
Thereafter he started crying and many people gathered at the spot. The
police also reached at the spot and his statement was recorded as Ex.PW-
1/A. PW-1 identified his signatures at point A-1 and also identified the
dead-body. PW-1 has also deposed that when the police reached the spot,
his younger sister, Poonam was sleeping on the bed and on seeing them,
she also started crying. Police also made enquiries from her as well.
Deepak Kumar has also deposed that at the place of occurrence, a
photograph of his mother along with Sanjay was hanging on the wall and
it was the said photograph which his father had asked to be removed and
thrown out, but his mother did not agree.
20. PW-1 has also testified that he was present at the time of quarrel before he
went upstairs. The Police had seized and sealed the blood stained bed
sheet, stone and photograph. He identified his signatures on the seizure
memo as Exhibit C-1. PW-1 also identified the seized articles and also
identified the photograph, which was recovered from the spot of his
deceased mother with Sanjay (Exhibit P-1). During cross-examination,
PW-1 testified that the quarrel between his parents took place at about
8.00 p.m., a day earlier. He had gone to bed at about 10.00 p.m. and he
found his mother dead at 5.00 a.m., the next morning.
21. PW-2, Keshav, is also one of the children of the appellant and the
deceased. This witness was thirteen years of age at the relevant time. It
has been observed by the learned Judge that on enquiries having been
made from the witness, the court was satisfied that this witness was
capable of understanding things and also the sanctity of an oath. PW-2,
Keshav, testified that he was residing in a jhuggi in Jailerwala Bagh along
with two younger sisters, one elder brother and his parents. He testified
that a boy Sanjay, used to come to meet his mother at the jhuggi and
sometimes even spent nights. On this issue, there used to be a quarrel
between his parents and the boy Sanjay, even used to beat his father. PW-
2 has also testified that on the day of the incident, he came to his house
between 8.00-9.00 p.m. and went to the roof to sleep after eating his food.
His brother, father and one sister, Neeraj, were also sleeping on the roof
of the jhuggi while his sister, Poonam, was sleeping in the room along
with his mother. In the morning, he was woken up by his brother and
when he came down, he found his mother dead. Her face was totally
crushed. He was informed by the Police officials that his father had
murdered his mother. He also testified that a photograph of his mother
and Sanjay was hanging on the wall of the room where his mother was
found dead. His father had objected to the photograph but she did not
remove the same. The witness identified the photograph as Exhibit P-1.
During cross-examination, PW-2 denied the suggestion that no quarrel
took place in his presence.
22. PW-3, Sh.Prakash, brother of the deceased Madhu, testified that the
deceased was his younger sister and she was residing along with the
appellant and her children. He further testified that she was a lady with a
bad character and was having an illicit relation with a boy named Sanjay.
He also testified that the deceased did not cook food for her husband and
although he had advised her to desist from such an affair but she did not
pay any heed to his suggestion and she used to maltreat her husband. This
witness has also testified that he was informed by his nephew, Deepak, on
26th August, 2006, that somebody has killed his mother. He had identified
the dead body of the deceased and on his pointing out, the accused
(appellant herein) was arrested by the Police from mazaar. He identified
his signatures on the arrest memo (Ex.PW-3/A) and the personal search
memo (Ex.PW-3/B). He also testified that the appellant had made a
disclosure statement which was recorded by the Police (Exhibit PW-3/C).
He also testified that the appellant had led the Police to the jhuggi from
where his clothes were recovered from the roof. He identified his thumb
impression at point A-1 on the seizure memo (Exhibit PW-3/D). PW-3
further identified the clothes of the appellant, which were seized by the
Police in his presence as Ex.P-6. It may be noticed that during cross-
examination, this witness testified as under:
"Police had reached the spot on 26th of August at about 8.00 AM. I
cannot say till when the Police remained there. Nothing was done
in my presence by the Police. No safari suit was recovered in my
presence by the Police. Voluntary, police obtained my signatures
on some blank papers in the Police Station."
23. PW-4, ASI Balwan Singh, testified that he along with the I.O. had reached
the spot of the incident in the morning of 26.8.2006. This witness has
testified that at about 3.00 p.m. the brother of the deceased, namely,
Prakash, met the I.O. and informed him that the husband of the deceased
was sitting at Sports Complex, near mazaar, Jailerwala Bagh, and he had
confessed that he committed the murder of Madhu due to her illicit
relations. He further testified that he along with the I.O. and Prakash
reached at Sports Complex near Mazaar and on pointing out of Prakash
the appellant was arrested by the I.O. His disclosure statement was
recorded as Exhibit PW-3/C. On the basis of the disclosure statement, the
appellant took them to jhuggi No.F-356 and from its roof one cream
colour safari suit with blood stains, kept under the broken „Palang‟, which
he was allegedly wearing at the time of the murder was found and the
same was sealed. At the time of post mortem, blood samples of the
deceased were handed over to the I.O. This witness also identified the
stone which was recovered from the spot (Exhibit P-2) and also identified
other articles seized including clothes of the deceased and the safari suit
with blood stains.
24. The prosecution also examined PW-8, Dr.Upendra Kishore, Assistant
Professor, MAMC, Delhi, who conducted the post mortem on the body of
the deceased Madhu. He described the external ante-mortem injuries and
also internal injuries on the deceased. He opined that the injuries could
have been caused by the stone produced in Court.
25. PW-12, Poonam, daughter of the deceased, testified that one Sanjay used
to come to meet her mother. On 25.8.2006 a quarrel took place between
her parents, although she did not know the cause of the quarrel. She went
to sleep at about 8.00 p.m. and on the next morning when she was woken
up by the Police she saw her mother lying dead on the floor. This witness
was cross-examined as she had re-siled from the previous statement made
before Police.
26. PW-16, Dr.K.K. Srivastava, Senior Scientific Officer, (Biology)-Cum-Ex.
Govt. Chemical Examiner, FSL, Rohini, Delhi, testified that reports,
Exhibit PW-16/A and Exhibit PW-16/B, were signed by him at point A.
27. PW-17, Inspector S.K. Sharma, testified that he reached the spot of the
incident on 26.8.2006. The dead body of one lady, Madhu, wife of Suresh
Chand, was lying on the floor. Her head was crushed and one blood
stained stone was found lying on the table near the body. Deepak, son of
the deceased, informed him that his father had killed his mother. He
further testified that statement of Deepak Kumar was recorded (Exhibit
PW-1/A). One photo of the deceased Madhu with one Sanjay was also
taken into possession. This witness has also testified that Prakash, the
brother of the deceased, had informed him that the husband of deceased,
Suresh was sitting near mazaar and he was feeling guilty for killing his
wife. He along with the Police party and Prakash reached the mazaar and
apprehended the appellant. The statement of the appellant was recorded.
His personal search was conducted. During disclosure the appellant had
informed that he had hid the blood stained clothes under the charpai at the
roof of his jhuggi. The same were recovered at his instance vide seizure
memo and pointing out memo Exhibit PW-3/D.
28. In the statement of the appellant recorded under Section 313 Cr.P.C. he
stated that his wife had been killed by Sanjay, Sagar and Laxman and his
wife had illicit relations with Sanjay.
29. The evidence of PW-1 and PW-2, both the sons of the deceased would
show that the deceased was residing along with her family in the jhuggi.
A day before the incident the couple had quarreled on account of a photo
of the deceased Madhu along with Sanjay, which had been hanging on the
wall of the jhuggi. Both the children testified that the parents had
quarreled over the boy named, Sanjay, who used to visit their house. Their
father did not like Sanjay visiting the house and on this account there used
to be frequent quarrels between the couple. Their father had asked Madhu
to remove her photograph with Sanjay hanging on the wall of the jhuggi,
which the mother did not agree to.
30. The brother of the deceased has also testified that his sister was having an
illicit relation with a boy named Sanjay. He has gone to the extent of
calling his sister a lady of bad character. Although PW-12, daughter of the
deceased was declared as a hostile witness but she also testified that on
25.8.2006 a quarrel took place between her parents. During cross-
examination by APP she denied that her mother had any relation with
Sanjay but she did not deny that a photograph of her mother with Sanjay
was hanging on the wall of the jhuggi and her father had objected to the
photograph. Based on the evidence of PW-1, PW-2 and PW-12, it is
clearly established that the appellant was last seen together with the
deceased at the spot of the incident. It is clearly established beyond any
shadow of doubt by the evidence of the children of the deceased that on
the night of the incident their parents were quarreling and the reason was
a photograph of the deceased along with Sanjay, which had been put on
the wall of the jhuggi. The appellant had asked his wife to remove the
photograph, which she refused. It is also established on record that the
couple would often quarrel on account of the relationship between the
deceased and Sanjay, and Sanjay would even sometimes spend nights at
the jhuggi. Based on the evidence of PW-3, PW-4 and PW-12, it is not
only established that the appellant was last seen with the deceased, it also
stands established that there was a strong motive in this case for the
appellant to kill his wife.
31. The evidence of PW-2 is corroborated by the evidence of PW-3 that the
cause of quarrel between the couple was a boy named Sanjay. PW-3, the
brother of the deceased, has testified that his sister was a lady of bad
character and she was having an illicit relation with the boy Sanjay.
Further, as per his testimony, he had requested his sister with folded hands
to desist from such an affair but she did not agree. PW-3 is an important
witness. The appellant was arrested by the Police on the pointing out of
PW-3, Sh.Prakash. PW-3 has testified that on his pointing out, the
accused (appellant herein), whom he identified in Court was arrested by
the Police from mazaar. He also testified that the arrest memo and
personal search memo (Exhibits 3-A and 3-B) bear his thumb impressions
at point A-1. This witness has also testified that the accused (appellant
herein) had made a disclosure statement (Exhibit PW-3/C), which was
recorded by the Police, which bears his thumb impression at point A-1
and further the accused (appellant herein) had led the Police to the roof of
his jhuggi from where his bloodstained clothes were recovered. The
clothes were seized and sealed vide Exhibit PW-3/D. He identified his
thumb impression at point A-1. It may however, be noted that further
examination-in-chief of PW-3 was deferred from 8th October, 2007 to 26th
July, 2008, when this witness further testified and identified the clothes of
the accused (appellant herein) having blood stains, which were seized
vide seizure memo Ex.PW-3/D and the same was marked as Exhibit P-6
but during cross-examination on the same day, this witness testified that
nothing was done in his presence by the Police nor safari suit was
recovered and his signatures were obtained on some papers in the Police
Station. The cross examination of this witness cannot come to the aid and
rescue of the appellant in view of the categoric stand taken by him in his
examination-in-chief and secondly, both PW-4 ASI Balwan Singh and
PW-17 Insp.S.K.Sharma have testified on the same lines as this witness
has testified, thus it would show that this witness was won over by the
appellant during the period 8th October 2007 to 26th July 2008.
32. PW-4, ASI Balwan Singh, has testified that the brother of the deceased
came to the spot, met the I.O. and informed the I.O. that Suresh Chand,
appellant herein, who was the husband of the deceased was sitting at
Sports Complex, near mazaar, Jailerwala Bagh, and he had confessed to
committing the murder of Madhu due to her illicit relation with Sanjay.
This witness also testified that he along with the I.O. and Prakash reached
the spot, arrested the accused vide memo Ex.PW-3/A, his personal search
was conducted vide memo Ex.PW-3/B and his disclosure statement was
recorded (Exhibit PW-3/C). Further this witness has corroborated that on
the basis of the disclosure statement, accused took them to the jhuggi and
from its roof one cream colour safari suit, which was kept under a broken
palang, was produced before the I.O., on which blood stains were found
and which he was allegedly wearing at the time of the murder.
33. Evidence of PW-17 also corroborates the evidence of PW-4, ASI Balwan
Singh, and PW-3, Prakash, who has deposed on the lines of deposition
made by PW-4 with respect to the pointing out of appellant by his
brother-in-law near the mazaar and also with regard to personal search
and arrest memo and disclosure statement. Based on the evidence of PW-
17 Inspector S.K. Sharma, PW-4 ASI Balwan Singh read with the
evidence of PW-3, who is none other than the brother of the deceased, the
prosecution has been able to establish beyond any doubt that after
committing the murder, the appellant had absconded and was arrested on
the pointing out of his own brother-in-law PW-3.
34. The evidence of PW-3 is truthful and trustworthy inasmuch as that he has
condemned his own sister as being a lady of a bad character, who was
having an illicit relation with a boy named Sanjay. He pointed out in his
evidence that she would not cook for his husband and despite his repeated
requests with folded hands, she did not desist from her behaviour. It is this
witness, who has truthfully deposed that he pointed out to the appellant
near the mazaar. The appellant was arrested in his presence. Disclosure
was made in his presence. The appellant led the Police to the jhuggi where
the clothes were recovered from the roof of the jhuggi. The clothes were
seized vide Exhibit PW-3/D. He identified his thumb impression at point
A. He also identified the blood stained clothes. There is no contradiction
or variance in the evidence of all the three witnesses i.e. PW-3, PW-4 and
PW-17 with respect to the arrest of the appellant and with respect to his
disclosure statement pointing out of the clothes, which were within his
special knowledge and the blood stained clothes have been identified by
all the three witnesses.
35. PW-1, who was the first to find his mother lying in the pool of blood has
testified that a stone with blood stains was lying in the room. PW-2 has
also testified that he had seen his mother‟s face totally crushed. PW-4 has
also testified that blood stained stone was lying near the dead body of the
deceased, which was seized and sent for examination.
36. As per the evidence of PW-8, Dr.Upendra Kishore, Assistant Professor,
MAMC, Delhi, who had conducted the post-mortem on the body of the
deceased, on being shown the stone opined that the injuries on the dead
body could have been caused by the stone produced or by a similar one.
Thus, it is clearly established that the stone found near the body of the
deceased was the weapon of offence.
37. The scientific evidence placed on record in the form of reports Ex.PW-
16/A and Ex.PW-16/B have confirmed that the clothes worn by the
appellant i.e. pant and shirt, and the clothes worn by the deceased i.e.
Salwar, kurta and bra, weapon of offence i.e. the stone and the articles
collected from the spot in the form of bed sheet and mat, were all having
blood stains and on all the aforesaid articles the blood was human blood
and of the same group and the same was similar to the blood sample
collected by the IO from the spot through seizure memo Ex.PW-1/C. The
relevant portion of Ex.PW-16/A and Ex.PW-16/B reads as under:
"DESCRIPTION OF ARTICLES CONTAINED IN PARCEL
Parcel „1‟: One cloth parcel sealed with the seal of BS containing
exhibit „1‟.
Exhibit „1‟: A piece of gauze cloth having dark brown stains.
Parcel „2‟: One cloth parcel sealed with the seal of BS containing
exhibits „2a‟ and „2b‟.
Exhibit „2a‟: One bed sheet having dark stiff brown stains.
Exhibit „2b‟: One foot mat having dark stiff stains.
Parcel „3‟ : One cloth parcel sealed with the seal of FMT BJRM
HOSPITAL DELHI containing exhibits „3a‟, „3b‟, „3c‟
and „3d‟.
Exhibit „3a‟: One lady kurta having dark brown stains.
Exhibt „3b‟: One lady salwar having dark brown stains.
Exhibit „3c‟: One underwear having dark brown stains.
Exhibit „3d‟: One brassiere having dark brown stains.
Parcel „4‟ : One cloth parcel sealed with the seal of BS containing
exhibits „4a‟ and „4b‟.
Exhibit „4a‟: One full sleeved shirt having dark brown stains.
Exhibit „4b‟: One paints having dark brown stains.
Parcel „5‟ : One cloth parcel sealed with the seal of FMT BJRM
HOSPITAL DELHI containing exhibits „5‟.
Exhibit „5‟ : A heavy stone piece having dark brown stains.
Parcel „6‟ : One paper envelope sealed with the seal of FMT
BJRM HOSPITAL DELHI containing exhibit „6‟.
Exhibit „6‟ : A piece of gauze having dark brown stains.
1. Blood was detected on exhibits „1‟, „2a‟, „2b‟, „3a, „3b‟, „3c‟,
„3d‟, „4a‟, „4b‟, „5‟ and „6‟.
2. Report of serological analysis in original in attached herewith.
The relevant portion of report Ex.PW16/B is as under:-
Exhibits Species of Origin ABO Group/Remarks
„1‟ Gauze Human „A‟ Group
„2a‟ Bedsheet Human „A‟ Group
„2b‟ Foot mat Human No reaction
„3a‟ Lady kurta Human „A‟ Group
„3b‟ Lady Human „A‟ Group
Salwar
„3c‟ Underwear Human „A‟ Group
„3d‟ Brassiere Human „A‟ Group
„4a‟ Shirt Human „A‟ Group
„4b‟ Pants Human „A‟ Group
„5‟ Stone piece Human „A‟ Group
„6‟ Gauze piece Human „A‟ Group
38. Thus, it is established that the blood found on all the aforesaid articles was
the blood of the deceased Madhu and by the factum that the same blood
was found on the clothes worn by the appellant i.e. pant and shirt and the
fact that the same was got recovered by the appellant himself has further
established the circumstances against the appellant and there is no
explanation to presume to the contrary.
39. There is no quarrel with the proposition that in a case of circumstantial
evidence, all the circumstances which pointed out towards the guilt of a
person, must be fully established.
40. Law with regard to the conviction on the basis of circumstantial evidence
has been discussed in detail by the Supreme Court in the case of
Harishchandra Ladaku Thange Vs. State of Maharashtra, reported at
AIR 2007 SC 2957. It would be useful to reproduce the relevant paras:-
"8. It has been consistently laid down by this Court that
where a case rests squarely on circumstantial evidence, the
inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be
incompatible with the innocence of the acused or the guilt of
any other person. (See Hukam Singh V. State of Rajasthan
(AIR 1977 SC 1063), Eradu V. State of Hyderabad (AIR
1956 SC 31), Earaohadrappa V. State of Karnataka (AIR
1983 SC 446), State of U.P. V. Sukhbasi & Ors. (AIR 1985
SC 1224), Balwinder Singh alias Dalbir Singh V. State of
Punjab (AIR 1987 SC 350) and Ashok Kumar Chaterjee V.
State of M.P. (AIR 1989 SC 1890)). The circumstances
from which an inference as to the guilt of the accused is
drawn have to be proved beyond reasonable doubt and have
to be shown to be closely connected with the principal fact
sought to be inferred from those circumstances. In Bhagat
Ram V. State of Punjab (AIR 1954 SC 621) it was laid down
that where the case depends upon the conclusion drawn from
circumstances the cumulative effect of the circumstances
must be such as to negative the innocence of the accused and
bring home the offences beyond any reasonable doubt.
9. We may also make a reference to a decision of this Court
in C. Chenga Reddy & Ors. V. State of A.P. (1996 (10) SCC
193), wherein it has been observed thus:-
"21. In a case based on circumstantial evidence, the
settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved
and such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete
and there should be no gap left in the chain of
evidence. Further the proved circumstances must be
consistent only with the hypothesis of the guilt of the
accused and totally inconsistent with his innocence."
8. In Padala Veera Reddy V. State of A.P. (AIR 1990 SC
79) it was laid down that when a case rests upon
circumstantial evidence, such evidence must satisfy the
following tests:
(1) the circumstances from which an inference of guilt
is sought to be drawn, must be cogently and firmly
established;
(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused;
(3) the circumstances, taken cumulatively, should form
a chain so complete that there is no escape from the
conclusion that within all human probability the
crime was committed by the accused and none else;
and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of
guilt of the accused and such evidence should not
only be consistent with the guilt of the accused but
should be inconsistent with his innocence."
41. It would be useful to reproduce the observations of the Supreme Court of
India in another decision rendered in the case of Munish Mubar v. State
of Haryana, reported at (2012) 10 SCC 464 paras 20 and 22 reading as
under:
"20. Undoubtedly, in a case of circumstantial evidence, all the
circumstances must be fully established and all the facts so
established, must be consistent with the hypothesis regarding the
guilt of the accused. The circumstances so established, should
exclude every other possible hypothesis except the one sought to be
proved. The circumstances must be conclusive in nature.
Circumstantial evidence is a close companion of factual matrix,
creating a fine network through which there can be no escape for
the accused, primarily because the said facts, when taken as a
whole, do not permit us to arrive at any other inference but one,
indicating the guilt of the accused.
22. In a case of circumstantial evidence, motive assumes great
significance and importance, for the reason that the absence of
motive would put the court on its guard and cause it to scrutinize
each piece of evidence very closely in order to ensure that
suspicion, emotion or conjecture do not take the place of proof.
However, the evidence regarding existence of motive which
operates in the mind of an assassin is very often, not within the
reach of others. The said motive, may not even be known to the
victim of the crime. The motive may be known to the assassin and
no one else may know what gave birth to such evil thought, in the
mind of the assassin. In a case of circumstantial evidence, the
evidence indicating the guilt of the accused becomes untrustworthy
and unreliable, because most often it is only the perpetrator of the
crime alone, who has knowledge of the circumstances that
prompted him to adopt a certain course of action, leading to the
commission of the crime. Therefore, if the evidence on record
suggest sufficient/necessary motive to commit a crime, it may be
conceived that the accused has committed the same. (See: Subedar
Tewari v. State of U.P. and Ors.: AIR 1989 SC 733; Suresh
Chandra Bahri v. State of Bihar: AIR 1994 SC 2420; and Dr. Sunil
Clifford Daniel v. State of Punjab: JT 2012 (8) SC 639)."
42. In this case, motive stands duly established from the evidence of PW-1,
PW-2, PW-3 and PW-12. It has also been established that the deceased
was having an illicit relation with a boy named Sanjay. The couple would
often quarrel on this issue. On the preceding night of the incident, a
quarrel broke out between the deceased and the appellant in the presence
of PW-1 as the appellant had asked the deceased to remove the picture of
the deceased and Sanjay put on the wall, which the deceased had refused
to remove. The picture was found at the spot of the incident.
43. As per the evidence as noticed in the paragraphs aforegoing, which
establish a strong motive and strong circumstances, which point towards
the guilt of the appellant, the stone with which the head of the deceased
was smashed was found at the spot with blood stains, which matches with
the blood group of the deceased. As per the evidence of Dr.Upender, PW-
8, the said stone could have been used for smashing the head of the
deceased which led to her death. It has been submitted before us that the
appellant did not abscond after the commission of the crime and this is a
relevant factor which should have been considered by the trial court. The
evidence of PW-3, brother of the deceased read with the evidence of PW-
4, ASI Balwan Singh, and PW-17, Inspector S.K. Sharma, would show
that the appellant was arrested from the mazaar on the pointing out of
PW-3. Thus, it cannot be said that the appellant was present at the spot
after the incident. The appellant had made a disclosure statement in the
presence of PW-3. The thumb impression on the disclosure statement has
been identified by PW-3 as also by PW-4 and PW-17.
44. In the case of Golakand Venkateshwara Rao v. State of A.P., reported at
(2003) 9 SCC 277, it has been held as under:
"15. The provisions of Section 27 of the Evidence Act are based on
the view that if a fact is actually discovered in consequence of
information given, some guarantee is afforded thereby that the
information was true and consequently the said information can
safely be allowed to be given in evidence because if such an
information is further fortified and confirmed by the discovery of
articles or the instrument of crime and which leads to the belief that
the information about the confession made as to the articles of
crime cannot be false. (See S.C. Bahri v. State of Bihar: 1994 Cri
LJ 3271). As already noticed M.O.3, M.O.4 and M.O.5 were
retrieved from the well with the help of swimmers, as there was a
water level of 6-1/2 feet. MO.2 MO.6 and MO.8 are the pieces of
langa dug out and unearthed at the disclosure of the appellant.
These materials were not found lying on the surface of the ground
but they were found inside the well, which is 6-1/2 deep of water,
with the help of swimmers and were found after being dug out and
unearthed only after the place was pointed out by the appellant. It is
not found from the place where public can have free access.
Therefore, there is no reasonable apprehension with the material
exhibits being planted to rope in the appellant with the crime."
45. It would also be useful to reproduce the observations made by the
Supreme Court of India in the case of Nisar Khan Alias Guddu & Others
v. State of Uttaranchal, reported at (2006) 9 SCC 386:
"6. Regarding the second contention that the recovery of arms has
not been proved by the prosecution has also no substance. It is
evidence on record that the accused were arrested on 17.12.1999
and pursuant to a disclosure statement made by them, the arms sere
recovered from the bank of Gaula river where these have been
hidden under the sand and covered by the stones. All the arms were
recovered as pointed out by each accused hidden under the stones.
The High Court fell in error in holding that the recovery has not
been proved as these were recovered from a place which is
frequented by the public. This finding of the High Court is contrary
to the evidence on record. It is now well settled principle of law
that the recovery pursuant to the disclosure statement made by the
accused under Section 27 of the Evidence Act is admissible in
evidence. In Dhananjoy Chatterjee alias Dhana v. State of West
Bengal: [1994] 2 SCC 220: 1994 SCC (Cri) 358, it is held that
entire statement made by an accused person before the police is
inadmissible in evidence being hit by Sections 25 and 26 but that
part of his statement which led to the discovery of the articles is
clearly admissible under Section 27of the Act. It is also held that
the Court must disregard the inadmissible part of the statement and
take note only of that part of his statement which distinctly relates
to the discovery of the articles pursuant to the disclosure statement
made by the accused. It is further held that the discovery of the fact
in this connection includes the discovery of an object found, the
place from which it is produced and the knowledge of the accused
as to its existence.
7. In the case of Gola Konda Venkateswara Rao v. State of A.P.:
2003 Cri LJ 3731 , this Court reiterated the view and held that the
discovery statement of an accused leading to recovery of crime
articles from concealed place. Even though the discovery statement
and the recovery memo did not bear the accused's signature. The
fact of recovery from the well and dug out from a place which was
pointed out by the appellant and, therefore, such discovery was
voluntary. That the recovery was in consequence to the information
given fortified and confirmed by the discovery of the wearing
apparel and skeletal remains of the deceased and, therefore, the
information and statement cannot be held false. In the present case
on the recovery memo the signatures of all the accused have been
obtained. In the case of Praveen Kumar v. State of Karnataka, the
same view has been reiterated.
8. As already noted, in the instant case the discovery of the arms
was pursuant to the disclosure statement made by the accused
immediately after the arrest and the offending arms were recovered
at the place pointed out by each of the accused which were
concealed under the sand and covered by the stones. The High
Court in this regard fell in grave error by disbelieving the recovery
memo solely on the ground that the place is a common place which
is frequented by the public. The High Court failed to take notice
that the recovery has been made from underneath the sand covered
by the stones pursuant to the disclosure statement pointing out by
each of the accused."
46. In the present case, the blood stained clothes of the appellant were
discovered under the cot from the terrace, a place, which was not within
the knowledge of the Police and was discovered for the first time on the
information given by the appellant. Since the information given by the
appellant led to the discovery of facts, which facts were within the
knowledge of the appellant and also which had a direct relation and nexus
to the commission of the offence, the same would be covered by Section
27 of the Evidence Act.
47. For the reasons aforestated, we find no grounds to interfere with the
judgment and order of learned trial court holding the appellant guilty for
the offence. We also find that the evidence adduced by the prosecution,
the recovery effected on the pointing out of the appellant and the
disclosure made by him are sufficient to hold the appellant guilty coupled
with the strong motive, which stands fully established for the offence
committed. The appeal is accordingly dismissed.
(G.S.SISTANI)
JUDGE
(G.P.MITTAL)
JUDGE
JULY 21, 2014 msr
