Delhi High Court

Anees vs State (Govt Of Nct Of Delhi) on 23 May, 2014

Author: G.P. Mittal

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Reserved on: 7th May, 2014
                                           Pronounced on: 23rd May, 2014

+       CRL. A. 320/1998

        ANEES                                            ..... Appellant

                           Through:   Mr. Shahid Azad, Advocate with
                                      Mohd. Aslam, Advocate and
                                      Mr. Shabana Ahmed, Advocate.
                           Versus

        STATE (GOVT OF NCT OF DELHI)                     ..... Respondent

                           Through    Ms. Rajdipa Behura, APP for the
                                      State.
        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA
        HON'BLE MR. JUSTICE G.P. MITTAL

                                JUDGMENT

G.P. MITTAL, J.

1. Appellant Anees impugns the judgment and the order on sentence

dated 28.07.1998 passed in Sessions Case No.176/ 1996 arising out of

FIR No.728/ 1995 whereby he was convicted for the offence

punishable under Section 302 of the Indian Penal Code, 1860 (IPC for

short) for committing murder of his wife Saira and was sentenced to

undergo imprisonment for life and to pay a fine of Rs. 5,000/-. In

default of payment of fine, the appellant was directed to suffer

rigorous imprisonment for six months.

2. Facts leading to the registration of FIR No. 728/ 1995, Police Station

Gokal Puri and appellant's trial for the offence punishable under

Section 302 IPC can be culled out from para 3 of the impugned

judgment as under:-

"On 29.12.95 at about 4.45 p.m. wireless operator of Delhi Police informed that P.S. that he had received the information from Lady Ct. Munni Khan that one lady had been stabbed near the factory premises of Veerpal in H. No. 222, Gali No. 3, Old Mustafabad and some officer may be sent at the spot. The information was reduced into writing in the form of DD No. 25-A and copy was given to SI Mohkam Singh for inquiry. He alongwith his staff and SHO of the P.S. rushed to the spot. The dead body of deceased Mst. Shahida was found lying in the pool of blood in the courtyard of the house. There were deep stab wounds in the abdomen and other parts of the body. Her husband Anis, the accused of the case, was also present at the spot. He was having simple injuries on his left arm. Both of them were sent to the hospital. Doctor examining the deceased Shahida reported that she had been brought dead. Accused Anis was declared fit for statement and was discharged after bandaging. During inquiry, it emerged that accused was fed up from the activities of the deceased as she used to leave the house without his permission and returned (sic return) late in the night and indulged in undesirable activities. Occurrence was also result of the altercation they had on that night about the late coming of the deceased and her refusal to disclose as to where had she gone. During investigation, the IO recorded the statement of the small

daughter of the couple who told that she was sleeping and on hearing the shouting and cries, got up and saw her father raining knife blows on the person of her mother. The post- mortem of the deceased was conducted and her blood- stained clothes were sent to CFSL. Accused also got the weapon of offence namely the dagger recovered which he alleged to have thrown in the drain of dirty water. Since there was no blood on the knife and it was wiped out, knife was not sent to CFSL. After receiving the reports from the CFSL as to the serological examination and recording the statement of the witnesses and after completing other formalities of the investigation, police filed the Challan against the accused for the offence punishable under Section 302 IPC......."

3. In order to establish its case, the prosecution examined 17 witnesses.

The prosecution relied upon direct evidence in the shape of testimony

of Shaheena (PW-3), the appellant's and the deceased's daughter who

was projected as an eye witness by the prosecution. The prosecution

also relied upon circumstantial evidence in the shape of absence of

any reasonable explanation by the appellant as to how his wife Ms.

Saira suffered fatal injuries in her own house in the appellant's

presence in the early hours of 29.12.1995. Motive for commission of

the crime was projected as illegal demand of money from relations of

the deceased and harassment for not meeting the demands. Evidence

was led through Shakeel Ahmed (PW-4) and Rafiq Ahmed (PW-11),

brother and father of the deceased respectively that she was even

divorced by the appellant. PWs 4 and 11 deposed that they paid a sum

of Rs. 50,000/- to the appellant and only then the appellant remarried

the deceased and took her along.

4. Shaheena (PW-3) did not support the prosecution case and was

declared hostile. The Trial Court opined that Shaheena (PW-3) was

between the devil and the deep sea as she did not want to lose her

father (the appellant) after having lost her mother in the gruesome

incident of 29.12.1995 and thus, her non-supporting the prosecution

case was explainable. The alleged recovery of the weapon of offence,

i.e. dagger Ex. P-1 was held to be immaterial as the same was not

connected to the offence because of absence of any blood thereon. The

Trial Court rejected the appellant's explanation that deceased Saira

suffered injuries at the hands of two unknown intruders and in the

absence of any plausible explanation as to how the deceased suffered

injuries and the appellant being the only person present with her

(Shaheena being a small child of five years), held the appellant guilty

for Saira's murder and convicted him. The Trial Court rejected the

explanation given by the appellant on the ground, inter alia, that the

appellant could not have escaped with some superficial injuries while

his wife (the deceased) received 14 incised injuries, out of which three

were fatal injuries, i.e. injuries No. 10, 11 and 12 which individually

and collectively were sufficient to cause death in the ordinary course

of nature. In para 25 of the impugned judgment, the Trial Court

observed as under:-

"25. It may be stated at the very outset that the defence of the accused though it cannot be used against him for any purpose whatsoever nor can be used for corroboration of the prosecution case, appears to be palpably unplausile. According to him, some strangers who were two or three in number, intrudes (sic intruded) in the house and started giving knife blows to him as well as to the deceased. His child who was very small and aged about four or five years has also stated the same thing and was declared hostile. It is not understandable as to how did his wife was inflicted such a large number of knife injuries whereas he had only simple injuries. Secondly, he did not disclose this fact either to the police why inquiry was made from him nor did he lodge any report to this effect. It appears that the defence was taken only for the sake of defence. Knowing it well that its basis was so feeble and weak that nothing can stand on it. "

5. The learned counsel for the appellant urges that an accused in a

criminal trial is not expected to prove his defence or give an

explanation which may prove his case beyond reasonable doubt. He

can do so by leading evidence to prove his defence on the test of

preponderance of probability only. It is urged that to prove his version

the accused/appellant can refer and rely on the evidence produced by

the prosecution or can independently lead defence evidence. The

learned counsel thus, states that the explanation given by the appellant

in his statement under Section 313 of the Code of Criminal Procedure,

1973 (Cr.P.C.) that the injuries inflicted on the deceased was the

handy work of the two intruders ought to have been accepted by the

Trial Court as the appellant could not have done anything more than

stating the same.

6. The learned counsel for the appellant criticised the impugned

judgment urging that the Trial Court acted on surmises and

conjectures while observing that the accused was repentant on his

conduct and wanted to revive his wife (the deceased) and therefore,

removed her to the hospital in the hope that she might still survive.

7. The learned counsel states that SI Mohkam Singh (PW-17), I.O. of the

case, in his cross-examination had stated that he had questioned

Shaheena (PW-3) before sending rukka to the Police Station and PW-3

had disclosed that the appellant had murdered his wife Saira. The

learned counsel urges that this fact is conspicuously absent in the

rukka which falsifies PW-17's testimony and thus, PW-17 (I.O.) is

unworthy of reliance and unbelievable. The learned counsel for the

appellant thus, states that since the appellant's defence/ explanation

cannot be totally rejected, he (the appellant) is entitled to be given

benefit of doubt and the Trial Court judgment is liable to be reversed.

8. On the other hand, Ms. Rajdipa Behura, learned Additional Public

Prosecutor for the State contends that murder of Saira (the appellant's

wife) took place within the four corners of the house in the early hours

of 29.12.1995. The appellant was very much present in the house at

the time of the offence and thus, these facts having been established

by the prosecution, the appellant owed a reasonable explanation under

Section 106 of the Evidence Act, 1872 (Evidence Act) to show as to

how the deceased suffered fatal injuries. In the absence of any

reasonable explanation and on the basis of last seen evidence, the

appellant, argues the learned Public Prosecutor, has been rightly held

guilty and convicted under Section 302 IPC by the Trial Court.

9. The question for consideration in this case is whether the explanation

given by the appellant is acceptable even on the preponderance of

probabilities or is merely an eye wash. At this stage, we would like to

notice SI Mohkam Singh's (PW-17) testimony showing appellant's

reluctance to state as to how the deceased suffered injuries. He

deposed:-

"On 29.12.95 I was posted at P.S. Gokalpuri. On that day DD No. 25A which is Ex. PW-5/A was entrusted to me for investigation. I along with Ct. Dhan Singh and SHO Rajbir Singh, Ct. Giasuddin and others went to the spot at Gali No. 3, H. No. 220, Old Mustafaabd. At the spot, Saira, wife of Anis, was lying in injured condition at the courtyard of the

house. Anis present in court, was also present there. He was also having injuries. Both the injured persons had been sent to GTB hospital in a PCR van. We left the Constable Dhan Singh at the spot and we went to GTB Hospital. I collected the MLC of Anis and Saira. On the MLC of Saira, she was declared brought dead. On the MLC of Anis, he was declared fit for making statement and his injuries were kept under observation. I had asked Anis to make his statement, but he was not fit to depose because his wife Saira has died and that he would make the statement sometimes later on the arrival of his relatives. Thereafter, on the basis of DD and circumstances, I prepared tehrir Ex. PW-17/A and sent it through Ct. Giasuddin to the PS for registration of the case..................... "

10. PW-17's testimony that the appellant refused to make the statement as

to the incident and on the other hand, his disclosure that he would

make the statement later on, on arrival of his relatives speaks volume

that the appellant wanted to invent some story by gaining time. Had

two intruders actually caused injuries on the person of deceased Saira

as has been subsequently propounded by the appellant, he would have

immediately informed the police about the same so that the culprits

are immediately caught and brought to book. PW-17's testimony that

the appellant wanted to make the statement later on only on arrival of

his relatives was not challenged by the appellant in PW-17's cross-

examination. At this stage, it would be appropriate to advert to the

explanation given by the appellant in reply to question No. 12 in his

statement under Section 313 Cr.P.C. which is extracted as under:-

"Q.12 Have you anything else to say?

Ans. I along with my wife, deceased, and my daughter Siana was sleeping in my house. Two persons caused injuries to my wife. I tried to save her but I was also hurt by those persons. I do not know as to why those strangers caused injuries to my wife. I am innocent. After causing the injuries those persons fled away from there."

11. The explanation that two persons had caused injuries on the person of

deceased Saira was admittedly not put to PW-17 in his cross-

examination. Had there been any truth in the explanation propounded

by the appellant, he would not have been content to simply state that

the injuries were caused by two persons, he would have given the

detailed description (as far as possible) of the assailants as also the

motive as to why the deceased alone was targeted particularly, when

robbery was not the motive of the injuries alleged to have been

inflicted by the two unknown intruders. Intrusion into the house by

unknown third persons would have resulted in tell tail and revelatory

evidence. There is no indication or suggestion relating to the said

evidence.

12. We are conscious of the fact that burden is always on the prosecution

to prove its case beyond reasonable doubt. Section 106 of the

Evidence Act does not relieve the prosecution of proving essential

facts and it is only when those facts are proved and further facts are/

could only be in the knowledge of the accused, that the accused is

expected to give an explanation. At this stage, it would be appropriate

to extract Section 106 of the Evidence Act with the illustrations

appended thereto 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:-

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

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

13. In Santosh Kumar Singh v. State through CBI, (2010) 9 SCC 747,

referring to Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10

SCC 681, the Supreme Court held as under:-

"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. 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. 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."

14. In a case dealing with the recovery of gold with foreign markings in

Shah Guman Mal v. State of Andhra Pradesh, (1980) 2 SCC 262, the

Supreme Court observed that the broad effect of the application of the

basic principles underlying Section 106 of the Evidence Act would be

that the onus is discharged if the prosecution adduces only so much

evidence, circumstantial or direct, as is sufficient to raise a

presumption in its favour with regard to the existence of the facts

sought to be proved.

15. Recently, in Prithipal Singh & Ors. v. State of Punjab & Anr., (2012)

1 SCC 10, relying on State of West Bengal v. Mir Mohammad Omar,

(2000) 8 SCC 382, the Supreme Court reiterated that Section 106 of

the Evidence Act was not intended to relieve the prosecution of its

burden to prove the guilt of the accused beyond reasonable doubt but

the Section would apply only to cases where the prosecution has

succeeded in proving facts from which a reasonable inference can be

drawn regarding existence of certain other facts and the accused by

virtue of his special knowledge regarding such facts fails to offer any

explanation which might derive the Court to draw a different

inference. Paras 53 and 79 of the report in Prithipal Singh are

extracted hereunder:-

"53. In State of W.B. v. Mir Mohammad Omar [(2000) 8 SCC 382 : 2000 SCC (Cri) 1516 : AIR 2000 SC 2988] this Court held that if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 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. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. (See also Shambhu Nath Mehra v. State of Ajmer [AIR 1956 SC 404 : 1956 Cri LJ 794], Sucha Singh v. State of Punjab[(2001) 4 SCC 375 : 2001 SCC (Cri) 717 : AIR 2001 SC 1436] and Sahadevan v. State [(2003) 1 SCC 534 : 2003 SCC (Cri) 382 : AIR 2003 SC 215] .) x x x x x x x

79. Both the courts below have found that the appellant- accused had abducted Shri Jaswant Singh Khalra. In such a situation, only the accused person could explain as to what

happened to Shri Khalra, and if he had died, in what manner and under what circumstances he had died and why his corpus delicti could not be recovered. All the appellant- accused failed to explain any inculpating circumstance even in their respective statements under Section 313 CrPC. Such a conduct also provides for an additional link in the chain of circumstances. The fact as to what had happened to the victim after his abduction by the accused persons, has been within the special knowledge of the accused persons, therefore, they could have given some explanation. In such a fact situation, the courts below have rightly drawn the presumption that the appellants were responsible for his abduction, illegal detention and murder."

16. We do agree that the burden of furnishing explanation under Section

106 of the Evidence Act on an accused is not as heavy as is on the

prosecution to establish the guilt of the accused. The onus can easily

be discharged by an accused by proving his version on mere

preponderance of probabilities. In Salim Zia v. State of Uttar Pradesh,

(1979) 2 SCC 648, in para 9, the Supreme Court held as under:-

"9. This takes us to the consideration of the other crucial question viz. whether the appellant was protected by the right of private defence of person or property. It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of prosecution witnesses or by adducing defence evidence. (See Partap v. State of U.P.[(1976) 2 SCC 798 : 1976 SCC

(Cri) 303 : AIR 1976 SC 966 : (1976) 1 SCR 757] and Munshi Ram v.Delhi Administration [AIR 1968 SC 702 : (1968) 2 SCR 455 : 1968 Cri LJ 806].) In the instant case, however, the appellant has not discharged that burden either by adducing any defence evidence or by eliciting from the prosecution witnesses the existence of facts and circumstances satisfying the requisite test of preponderance of probabilities entitling him to exercise the right of private defence either of person or of property."

17. Similar view was taken by the Supreme Court in T.N. Lakshmaiah v.

State of Karnataka, (2002) 1 SCC 219; Krishnan v. State of Tamil

Nadu, (2006) 11 SCC 304 and Jeffrey J. Diermeier & Anr. v. State of

West Bengal & Anr., (2010) 6 SCC 243.

18. As stated earlier, it is proved by overwhelming evidence and is not

even disputed by the appellant that deceased Saira was inflicted

injuries inside the matrimonial home (of the appellant and the

deceased). Initially, the appellant was completely silent as to how his

deceased wife suffered injuries. He told the IO that he would make a

statement later on only when his relations would arrive. As we have

pointed out earlier, in cross-examination of the IO and even in his

statement under Section 313 Cr.P.C., the appellant has not given the

details of the intruders. From the appellant's conduct in not disclosing

to the IO as to how his deceased wife suffered fatal injuries, there was

a lurking doubt even at that very time that it was only the appellant

who was responsible for causing the injuries unless something

material was really brought out by the appellant. Nothing prevented

the appellant to have disclosed about the incident immediately when

the police reached the spot that the injuries were inflicted on his

deceased wife by two unknown intruders. There was no indication or

giveaway to show the presence of third parties who intentionally

targeted the deceased. All these facts taken together, i.e. non-

disclosure of the information about the incident to the police, not

giving the details of the two intruders even in his statement under

Section 313 Cr.P.C. etc. would really show that the explanation given

by the appellant was false which would become an additional link in

the chain of circumstantial evidence in view of Manu Sao v. State of

Bihar, (2010) 12 SCC 310.

19. In Munna Kumar Upadhyay @ Munna Upadhyaya v. State of Andhra

Pradesh, (2012) 6 SCC 174, it was reiterated that if the accused gave

incorrect or false answers during the course of his statement under

Section 313 Cr.P.C., the Court can draw an adverse inference against

him. In para 76 of the report, the Supreme Court observed as under:-

"76. If the accused gave incorrect or false answers during the course of his statement under Section 313 Cr.P.C., the court can draw an adverse inference against him. In the present case, we are of the considered opinion that the

accused has not only failed to explain his conduct, in the manner in which every person of normal prudence would be expected to explain but had even given incorrect and false answers. In the present case, the Court not only draws an adverse inference, but such conduct of the accused would also tilt the case in favour of the prosecution."

20. We are conscious of the fact that Shaheena (PW-3) the appellant's

daughter has not supported the prosecution version that the appellant

was the perpetrator of the crime. She, in fact, came out with the story

which is in line with the explanation given by the appellant in his

examination under Section 313 Cr.P.C. But at the same time, as stated

above, no such explanation was given by the appellant to the IO when

he reached the spot immediately on getting information of the

incident. No such question was even put to the IO when he entered

the witness box as PW-17. The appellant did not choose himself to

enter the witness box under Section 315 Cr.P.C. and subject himself

for cross-examination in order to explain the peculiar circumstances in

which his wife was murdered within his small house. What is more

intriguing is why the intruders would keep their hands off in inflicting

injuries on the appellant's person who as per his own showing tried to

save his wife when she was being inflicted injuries by the two

intruders. Therefore, we totally reject the so-called explanation given

for the first time by the appellant in his examination under Section 313

Cr.P.C. The fact that the deceased's murder was committed within the

four corners of the small house in the appellant's presence and the fact

that the appellant even failed to disclose to the I.O. as to how his

deceased wife suffered injuries and the giving of a false explanation

unerringly point to the guilt of the appellant. It is firmly and clearly

established that it was the appellant and the appellant alone who was

the perpetrator of the crime.

21. It is true that SI Mohkam Singh (PW-17) had admitted in his cross-

examination that the appellant's daughter had disclosed even before

sending the rukka to the Police Station that the appellant had

committed the gruesome act and that this fact not been mentioned in

the rukka does not in any way belies the prosecution version. Perhaps

the I.O. thought that it would be inappropriate to record the statement

of a child aged about five years for the purpose of registration of an

FIR against her father and to first independently investigate and come

to more solid evidence. It may also be mentioned that during the

investigation of this case, an application was moved by the appellant's

father for getting the statement of Shaheena (PW-3) recorded under

Section 164 Cr.P.C. which was not recorded by the learned

Metropolitan Magistrate as the child was found to be tutored. It seems

that the I.O. preferred not to be criticised for getting the case

registered on the basis of statement of a child of tender age. And so he

did not record Shaheena's (PW-3) statement in the rukka.