Delhi High Court
Anup Joshi vs State on 20 November, 2015
$~R-20 (Part-B)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 15th October, 2015
% Date of Decision:20th November, 2015
+ CRL.A. 173/2000
ANUP JOSHI ..... Appellant
Through: Mr. Harsh Prabhakar, Adv.
DHCLSC and Mr. Anirudh
Tanwar, Adv.
versus
STATE ..... Respondent
Through: Mr. Varun Goswami, APP with
ASI Shyam Sunder-PS
Mukherjee Nagar, Delhi
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.K.GAUBA
R. K. GAUBA, J:
1. On 28.06.1996, Anju Mehta, wife of the appellant, aged about
23 years suffered homicidal death some time before 8.45 AM in a
tenanted room in occupation and use as residence of the couple in
House no.159, Village Dhaka within the jurisdiction of Police Station
Mukherjee Nagar ("the police station"). Around the same time and at
the same place, the appellant also suffered, amongst others, three clean
incised wounds near umbilicus over the abdominal region causing the
omentum (fold of peritoneum connecting stomach with other viscera)
to come out. The first information report (FIR) (Ex.PW-10/A),
registered at 12.05 PM by head constable Kamini (PW-10) on
28.06.1996, on the basis of rukka (Ex.PW-11/A) sent by head
Crl.A.No.173/2000 Page 1 of 26
constable Satyabir Singh (PW-11), founded on the statement of
Devender Kumar (PW-9), a neighbour, resulted in investigation and
report under Section 173 of Code of Criminal Procedure, 1973
(Cr.P.C) dated 23.09.1996 being submitted. It led to the appellant
being put on trial in sessions case no.74/1997 on the charge for the
offence of murder of Anju Mehta under Section 302 of Indian Penal
Code, 1860 (IPC) and for attempted suicide under Section 309 IPC.
2. By judgment dated 29.11.1999, the appellant was held guilty, as
charged, on the basis of circumstantial evidence primarily relying on
the fact that the tenanted room where the incident had occurred had
been found bolted from inside with no one other than the appellant and
his wife (the deceased) present there. By order on sentence passed on
30.11.1999, the trial court awarded imprisonment for life with fine of
Rs.50,000/- for the offence under Section 302 IPC and rigorous
imprisonment for one year with fine of Rs.1,000/- for the offence under
Section 309 IPC. It was directed that in case of default in payment of
fine, the convict shall undergo further simple imprisonment of five
years and one month respectively. The benefit of Section 428 Cr.P.C.
was accorded.
3. Aggrieved with the judgment and the order on sentence, the
appeal at hand was preferred. The sentence was suspended and the
appellant released on bail pending adjudication on the appeal by order
dated 23.01.2003.
4. We have heard arguments. During the course of hearing, we
have been taken through the trial court record by the learned counsel
on both sides.
Crl.A.No.173/2000 Page 2 of 26
5. Reliance has been placed on Chittaranjan Das V. State of West
Bengal AIR 1963 SC 1696 to contend that the trial was vitiated as the
charge framed were erroneous. The learned counsel for the appellant
pointed out that in the first head of the charge the place of occurrence
is indicated to be "in front of house No.159". He pointed out that the
incident is shown by the evidence to have actually taken place within
the confines of one room of the said house. Further, in the second head
of the charge for offence under Section 309 IPC, the appellant was
accused of having attempted to commit "society", which is
meaningless. This, per the submission, caused grave prejudice to the
appellant. It is further pointed out that the trial court committed
another error at the stage of examination of the appellant under Section
313 Cr.P.C. by mentioning the place of occurrence (in question No.1)
as "a room at the first floor of house No.159", which was not correct.
Reliance is placed on Asraf Ali V. State of Assam (2008) 10 SCR 1115
to argue that the failure of the trial court to correctly put the
incriminating circumstances amounts to serious irregularity, which
being prejudicial should also result in the trial being held as vitiated.
6. Whilst we agree that it is the responsibility of the criminal courts
to ensure a fair trial, inter alia, by taking care that charges are framed
with precision, adhering to the requirements of law prescribed
particularly through the provisions contained in Chapter XVII of
Cr.P.C., we do not accept the broad proposition that any "error" in the
charge would render the trial that follows vitiated. In this context we
need to refer only to two provisions viz., Sections 215 and 464 Cr.P.C.
which read as under :-
Crl.A.No.173/2000 Page 3 of 26
―215.
Effect of errors. - No error in stating either the offence or
the particulars required to be stated in the charge, and
no omission to state the offence or those particulars,
shall be regarded at any stage of the case as material,
unless the accused was in fact misled by such error or
omission, and it has occasioned a failure of justice.‖
―464. Effect of omission to frame, or absence of, or error
in, charge.- (1) No finding, sentence or order by a Court
of competent jurisdiction shall be deemed invalid merely
on the ground that no charge was framed or on the
ground of any error, omission or irregularity in the
charge including any misjoinder of charges, unless, in
the opinion of the Court of appeal, confirmation or
revision, a failure of justice has in fact been occasioned
thereby.
(2) If the Court of appeal, confirmation or revision is of
opinion that a failure of justice has in fact been
occasioned, it may-
(a) in the case of an omission to frame a charge, order
that a charge be framed and that the trial be
recommended from the point immediately after the
framing of the charge;
(b) in the case of an error, omission or irregularity in the
charge, direct a new trial to be had upon a charge
framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of
the case are such that no valid charge could be preferred
against the accused in respect of the facts proved, it shall
quash the conviction.‖
7. As is clear from the bare reading of Section 215 Cr.P.C. quoted
above, the omission to state the offence or its particulars in the charge
is not an error of the kind that would go to the root unless it can be
shown that such error or omission had misled the accused or had
Crl.A.No.173/2000 Page 4 of 26
occasioned a failure of justice. On almost similar lines, Section 464
Cr.P.C. prescribes the test of "failure of justice" for examining if the
error or omission in the charge is such as may result in the finding,
sentence or order of the criminal court to be rendered invalid. The
need for interference by the appellate court would arise in terms of
sub-section 2 of Section 464 only in the event of it finding the answer
of such scrutiny to be in the affirmative.
8. In the present case, the errors in the two charges under Section
309 IPC, though undesirable, were not such as would have misled the
appellant. Mercifully, in the second charge the particulars of the
offence included the allegation that he was being put to trial for
offence under Section 309 IPC for the reason he had stabbed himself in
the stomach. The evidence led thereupon, inter alia, refers to the
injuries suffered by him as also the MLC recorded pursuant to his
medical examination in the hospital. In fact, during his statement
under Section 313 Cr.P.C. the appellant himself referred to the stab
injuries suffered by him though claiming that he had been assaulted in
his sleep by some unknown person. The ocular evidence supported by
the site plans (Ex.PW-19/B and Ex.PW-13/A) clearly show that the
offences were committed neither in front of the house nor at the first
floor level but within the tenanted room at the ground floor of the
property. The appellant had clearly understood this and it was his own
case that his wife was murdered and he was stabbed in the tenanted
room at the ground floor. This is vivid further from his answer to the
first question in his statement under Section 313 Cr.P.C. Thus, the
errors in the charges, or in the question under Section 313 Cr.P.C. are
inconsequential.
Crl.A.No.173/2000 Page 5 of 26
9. It was submitted at the outset on behalf of the appellant that he
does not dispute that his wife Anju Mehta had suffered a homicidal
death, it being a case amounting to murder. The appellant also does
not dispute that he had also suffered dangerous injuries on the same
date, time and place. He, however, contests the allegations that it was
he who had committed the murder or that after the said offence he had
inflicted the dangerous injuries on his own person in an attempt to
commit suicide. His defence is that the fatal assault on the person of
Anju Mehta and the dangerous injuries inflicted on him were
committed by some intruder.
10. Notwithstanding the fact that the appellant concedes the
correctness of the prosecution case to above extent, this Court being
the first appellate court, and virtually the final forum on facts, in order
to satisfy ourselves as to the truth of the averments in the prosecution
case in above regard, we have gone through the evidence adduced
during trial. We conclude that the prosecution has successfully proved
the death of Anju Mehta to be a case of murder as also the fact that the
appellant was also seriously injured by the same weapon of offence
(scissors) as used against Anju Mehta at the same point of time. We
may briefly note the evidence to such effect.
11. Anju Mehta (the deceased) was daughter of Pishori Lal (PW-
18). Seema Mehta (PW-2) is her real sister. The evidence of both
these witnesses proves that the deceased was married to the appellant
in August, 1989. Initially, the couple lived together in village
Joshiana, District Pauri Garhwal though, presumably on account of
some quarrels, for some period the deceased also lived with her parents
Crl.A.No.173/2000 Page 6 of 26
in Modi Nagar (UP). A daughter named Guddan was born in due
course. The child, per the evidence of PW-2, after the incident (which
is subject matter of this case) was brought up by the parents of the
deceased. During the stay in native village of Garhwal, an incident had
occurred on 28.11.1993 which led to the trial of the appellant, at the
instance of the deceased, on the charge for offences punishable under
Sections 307, 506, 498 IPC in the court of sessions at Pauri Garhwal.
We shall refer to the facts and result of the said case a little later. For
the present, it only needs to be noted that the trial culminated in the
judgment dated 09.03.1995 whereby the appellant was held guilty for
offences under Sections 324 and 325 IPC. It emerges from the
evidence of Seema Mehta (PW-2), Pishori Lal (PW-18) and Meena
Chauhan (PW-8) and Devender Kumar (PW-9) that the couple had
later entered into a compromise and started living together having
taken on rent a room in the house which was the place of crime of the
case at hand. Meena Chauhan (PW-8), the land-lady, confirmed that
the premises in question had been let out by her to the appellant about
8/9 months prior to the incident. Devender Kumar (PW-9) was another
tenant in another portion of the same property.
12. The house in question (one of the rooms of which was in the
tenancy of the appellant where murder was committed and the
appellant was injured) is shown in the site plan without scale (PW-
19/B) prepared by Inspector Jagtar Singh (PW-19), the Station House
Officer (SHO) of the police station, who had inspected the scene of
crime. It is shown more clearly in the scaled site plan (Ex.PW-13/A)
prepared in due course by Tirath Raj Singh (PW-13). As clarified by
PW-9, besides him four or five other tenants, including the appellant,
Crl.A.No.173/2000 Page 7 of 26
were living in the said property, each having in their respective
possession one room. The room in the possession of the appellant was
not very large in dimensions (9 feet 9 inches long and 9 feet 6 inches
wide), self contained, enclosed from all sides, with only one door for
entry into or exit from and with a window being located close to the
door, with protection in the form of horizontally placed grill work.
13. During the course of investigation, Inspector Jagtar Singh (PW-
19) had arranged for an inspection by the crime team that included a
photographer Constable Balwan Singh (PW-5). PW-5 has proved the
negatives (Ex.PW-5/1 to 9) with the help of which he had prepared
photographs (Ex.PW-5/10 to 18). One of these photographs shows the
solitary door and the window from outside. It may be noted that an air
cooler was placed on a stand against the window though leaving some
space making it possible for one to look from outside. The door
noticeably is made of iron sheet.
14. Meena Chauhan (PW-8), the land-lady, and Devender Kumar
(PW-9), the neighbouring tenant, have testified - and there is no contest
from the side of appellant - that on the date in question (28.06.1996) at
about 8.30/8.45 AM it had come to be noticed that blood was flowing
out from beneath the door of the room in occupation and use of the
appellant (and the deceased). PW-8 was informed about this by
someone from the neighbourhood. PW-9, a TSR driver by profession,
was busy cleaning his TSR when he was informed by his son Rupesh
Kumar. Both of them ran to the door of the room of the appellant and
saw for themselves blood coming out in large quantity from the gap
between the door and the floor. Someone from the neighbourhood
Crl.A.No.173/2000 Page 8 of 26
informed the police control room (PCR) which passed on the
information to the police station where it was logged vide DD no.4A
(Mark X) at 9.15 AM. The matter was entrusted to head constable
Satyabir Singh (PW-11) who, accompanied by constable Bharat
Bhushan, reached the spot. He was joined in due course by the IO
(PW19) assisted by SI Raj Singh (PW-12).
15. The evidence of PW-11, PW-12 and PW-19, as indeed of PW-8
and PW-9, refers to the sequence in which entry into the room in
question was gained in due course. We reserve our scrutiny to this part
of the evidence for later. For present purposes, suffice it to note that
these witnesses have confirmed in unison that, inside the room, the
dead body of Anju Mehta was found on the floor with bleeding
injuries. The photographs (Ex.PW-5/10 to 18) confirm the ocular
evidence also corroborate that blood was found all over including on
the clothes lying on the bed, on the walls, door, furniture or other items
placed in the premises. The IO took note of the scene in his
endorsement (Ex.PW-11/A) forming part of the rukka. He prepared
death report (PW-19/C3) along with other inquest papers including
brief facts (PW-19/C1) and submitted the dead body for post-mortem
examination with formal request (Ex.PW-19/C) along with another
request (Ex.PW-19/C2), inter alia, for finger/palm prints, blood sample
etc. to be preserved.
16. The post-mortem examination was conducted by Dr. K. Goyal
(PW-3) on 29.06.1996 in the mortuary at Sabzi Mandi, Delhi. The
autopsy doctor issued report (Ex.PW-3/A) which has been formally
proved during the trial.
Crl.A.No.173/2000 Page 9 of 26
17. During the post-mortem examination, Dr. K. Goyal (PW-3)
noted in the autopsy report (Ex.PW-3/A) fifty external injuries on the
dead body including some superficial to muscle deep on different parts
of the limbs and mainly the following :-
1. Superficial incised wound I/W 4.4 cm x .7 cm over
middle of forehead obliquely placed and spindle shape.
2. Muscle deep incised wound 4.2 cm x .8 cm vertical
over frontal and forehead.
3. Vertical muscle deep incised wound 1.2 cm x .3 cm
over left forehead.
4. Muscle deep incised wound 1 cm x .2 cm left side
of nose.
5. Incised wound 1.8 cm x .2 cm muscle deep over left
lower eyelid.
6. Incised wound 1.7 x .3 over left lower eyelid.
7. Superficial I/W .5 cm x .2 cm, about 2 cm below
left eye.
8. I/W .5 x .2 over left upper eyelid.
9. I/W 2 cm x .5 cm at left angle of mouth.
10. I/W 1 cm x .3 cm at right angle of mouth.
11. I/W 3.8 x 1 spindle shape muscle deep over right
mandibular region just below right ear. There were 3
incised wound over right clavicular region.
12. 3 cm x 1 cm x ? over middle part wedge shape.
13. .5 x .2 cm superficial at medial end.
14. 1.4 x .7 muscle deep slightly wedge shape at
medial size placed vertically.
15. Wedge shape I/W 2.3 x .9 cm muscle deep
vertically with tail end downwards over chest about 1 cm
right to midline at the nipple lable.
16. Two superficial I/Ws 1 cm x .5 cm and 1.5 cm x .2
cm just above right nipple with two linear stretch around
of sizes 1 cm and 1.5 cm.
17. I/W 1.5 cm x .5 cm wedge shape over left breast
about 3 cm left to the nipple.
18. I/W 2.3 x 1.2 x ? over left chest at interior axillary
line about 14 cm below left axilla, wedge shape placed
rightly oblique.
Crl.A.No.173/2000 Page 10 of 26
19. Wedge shape I/W 2.8 cm x 1 cm x ? over right
lower chest at mid clavicular line about 23 cm below the
clavical placed transversally with tail and towards
lateral side.
20. Wedge shape I/W 2.7 x .8 x ? over right interior
axillary line about 19 cm below right axilla placed
obliquely.
21. Superficial I/W 1 cm x 1/2 cm between injury
number 19 and 20.
22. I/W 2 x .9 x ? over right lumber region wedge
shape.
23. There were five incised wounds wedge shape to
spindle shape of varying sized 1.8 cm x .3 cm to 2.5 cm x
1 cm over epigastric region in different direction.
24. 2 incised wounds placed perpendicular to each
other over lower side of epigastric region of sizes 4.5 cm
x 1.5 cm and perpendicular wound is about 3.5 cm x 1
cm wedge shape.
25. Transversally placed wedge shape I/W 2.2 x .4 x ?
just above the umbilicus.
26. Transversally placed wedge shape I/W 2 cm x .3
cm placed just right to the umbilicus with tail end
laterally.
27. Obliquely placed wedge shape I/W 2.3 x .8 over
left hypochondrium.
28. Vertically placed wedge shape I/W 2.5 cm x .7 cm
over left lumber region with tail end downwards.
29. Transversally placed wedge shape I/W 2.1 x .8 at
lower side of left chest at left anterior axillary line about
27 cm below axilla.
30. Wedge shape incised wound 2.2 x .8 placed
obliquely about 22 cm below left axilla at posterior
axillary line with tail end upwards.
31. Wedge shape I/W 2 cm x .08 cm placed
transversally at right posterior axillary line about 28 cm
below right axilla.
32. There were 3 wedge shape I/W in area 7 cm x 7 cm
of sizes 3.8 x 1.2, 2.5 x 1 and 2.8 x .9 present over back of
lower side of right chest.‖
Crl.A.No.173/2000 Page 11 of 26
18. The internal examination of the dead body revealed as follows :
―Head - Injuries over forehead and frontal region were
muscle deep to bone deep only. Bruising underneath
scalp frontal region around wounds. All other structures
were intact.
Neck - All structures were intact.
Chest and abdomen - Heaps intact
Injury no.19 and 20 present in right 7th ICS underlying
tissues and muscles cleanly cut, corresponding cut
present in right dome of diaphragm. Corresponding cut
present in right lobe of liver. Cut corresponding with
injury no.19 was about 2.5 cm deep in the liver and of
injury no.20 was about 2 cm deep. Total depth of the
wounds were about 7 to 8 cms underlying tissues and
muscles under injury no.24. cleanly cut with peritoneum.
Tears of sizes .75 inch to 1 inch present in small
intestinal loops at corresponding size and total maximum
depth about 10 cm. all other injuries over chest and
abdomen were superficial to muscle deep only.
Stomach, bladder, rectum and uterus were empty.‖
19. In the opinion of the autopsy doctor, all the above mentioned
injuries, ante-mortem in nature, had been caused by a sharp edged
weapon, possibly by a blade of a pair of scissors, injury nos. 19, 20 and
24 being individually sufficient, in ordinary course of nature, to cause
death. The death, in the opinion of the autopsy doctor, had occurred
due to haemorrhagic shock consequent to the injuries in the abdominal
region.
20. The sheer number of the injuries and the violence that was
inflicted on the body of Anju Mehta leaves no room for doubt that the
Crl.A.No.173/2000 Page 12 of 26
assailant had intended to bring about her death. Given these facts, and
in absence of any other theory, we have no hesitation in accepting the
conclusion of the trial court that Anju Mehta's death some time before
8.45 AM on 28.06.1996 in the aforementioned tenanted room was a
case of murder.
21. It has come in the evidence of PW-8, PW-9, PW-11, PW-12 and
PW-19 that when the door of the tenanted room was opened, the
appellant was also found lying inside in injured state. He was taken to
Hindu Rao Hospital by the IO, assisted by SI R P Singh (PW-6), and
examined against medico legal report (MLC) by Dr. R N Sahai (PW-
1). The examining medical officer (PW-1) has proved the MLC
(Ex.PW-1/A) indicating that the appellant had been brought to the
casualty of the said hospital at 10 AM and, upon examination, was
found having suffered the following injuries :
1. Clean incised wound, 3 in number/over
abdomen near umbilicus (centre point) with
omentum coming out from one of the wound.
2. Clean incised wound in right hand between
thumb and index fingers
3. Clean incised wound over left index finger
4. Clean incised over right hand over fourth
finger.
22. Dr. Arun Kumar (PW-17) was later called upon to examine the
matter and give opinion about the nature of injuries. The said witness
has proved the opinion (Ex.PW-17/A) recorded by him on the MLC
(Ex.PW-1/A). Given the first injury, noted above, we agree that the
Crl.A.No.173/2000 Page 13 of 26
wounds suffered by the appellant were life threatening and, thus,
dangerous in nature.
23. In addition to Seema Mehta (PW-2) and Pishori Lal (PW-18),
sister and father respectively of the deceased, the prosecution also
examined Vijay Bali (PW-7), the maternal uncle. It has come in the
evidence of the first of the said witnesses that she had also been living
with the couple in the tenanted room in village Dhaka during the
relevant period. The father and maternal uncle, speaking on the basis
of what they may have learnt from their respective interaction with the
deceased, and the sister deposing on the strength of what she had
herself seen, narrated as to how the appellant was in the habit of
quarrelling with, or beating, his wife (the deceased) frequently. PW-2
and PW-7 were not very elaborate in speaking about the past events
though PW-18 also confirmed their word about the incident of
28.11.1993 which had led to the trial of the appellant, inter alia, on the
charge under Section 307 IPC in the sessions court at Pauri Garhwal.
24. Devender Kumar (PW-9), the immediate neighbour did state that
he had never noticed the deceased or the appellant quarrelling with
each other, we have no reasons not to believe the word of the
immediate family members about the marital life of the couple not
having been happy or peaceful. A copy of the judgment dated
09.03.1995 (Ex.PY) along with the FIR no.5/93 dated 28.11.1993
(Ex.PX) pertaining to the sessions case faced earlier by the appellant in
the court of Sessions Judge, Pauri Garhwal lends more than necessary
corroboration to the oral word of the aforementioned witnesses. It was
proved at the said trial that the appellant had assaulted on the person of
Crl.A.No.173/2000 Page 14 of 26
the deceased with a gandasa and had caused injuries on her person.
Noticeably, in the said very incident of 28.11.1993, Seema (PW-2) was
also attacked and injured by the appellant. He was thus held guilty for
offences under Sections 324 and 325 IPC and was released on
probation for a period of one year, taking note of the fact that he had
remained in jail for a period of about eleven months (during the
investigation and trial).
25. It is the argument of the defence that the evidence about the
result of the criminal case faced by the appellant in the Court of
sessions at Pauri Garhwal cannot be taken note of because it is in the
nature of evidence showing "previous bad character" which is
irrelevant in criminal proceedings in view of the provision contained in
Section 54 of the Evidence Act.
26. Relying on Ram Lakhan Singh & Ors. V. State of Uttar Pradesh
(1977) 3 SCC 268, it is argued that the evidence of "bad character" is
not relevant except in rebuttal where evidence of "good character" is
submitted. The appellant also refers to Empress V. Naba Kumar
Patnaik & Ors. (1897) SCC online Cal 7 and Kamya V. State AIR
1960 AP 490 to submit that the mandate of Section 54 of the Evidence
Act renders it impermissible for the prosecution to lead evidence with
regard to the "previous conviction" of the accused.
27. We have examined the above objection but find it unmerited
primarily for the reasons that the above noted material is not presented
by the prosecution to reflect on the "character" but to show the past
conduct and motive which are relevant in view of Section 8 of the
Evidence Act.
Crl.A.No.173/2000 Page 15 of 26
28. Section 54 of the Indian Evidence Act debars proving the
previous conviction as evidencing bad character of the accused except
in certain circumstances. The exceptions are two-fold : firstly, when
evidence of good character has been led, and, secondly, when the
factum of previous conviction itself is in issue. Here, in the present
matter, neither of the two occasions has arisen. In fact, there is no
effort whatsoever on the part of the prosecution to lead evidence as to
previous conviction to consequently address the bad character issue.
The object of reliance on the judgment dated 09.03.1995 in the case of
Pauri Garhwal, as we shall presently see, is to prove the motive, past
conduct and the intention, all factors relevant to prove the charge in the
instant case.
29. Section 8, section 14, section 15 and section 43 of the Indian
Evidence Act, to the extent germane to the issues involved, may be
extracted. They read as under :
―8. Motive, preparation and previous or subsequent
conduct.--Any fact is relevant which shows or constitutes
a motive or preparation for any fact in issue or relevant
fact.
The conduct of any party, or of any agent to any
party, to any suit or proceeding, in reference to such suit
or proceeding, or in reference to any fact in issue therein
or relevant thereto, and the conduct of any person an
offence against whom is the subject of any proceeding, is
relevant, if such conduct influences or is influenced by
any fact in issue or relevant fact, and whether it was
previous or subsequent thereto.
Explanation 1.--The word ―conduct‖ in this
section does not include statements, unless those
statements accompany and explain acts other than
statements; but this explanation is not to affect the
Crl.A.No.173/2000 Page 16 of 26
relevancy of statements under any other section of this
Act.
Explanation 2.--When the conduct of any person is
relevant, any statement made to him or in his presence
and hearing, which affects such conduct, is relevant.
X X X
14. Facts
showing existence of state of mind, or of
body or bodily feeling.--Facts showing the existence of
any state of mind, such as intention, knowledge, good
faith, negligence, rashness, ill-will or good-will towards
any particular person, or showing the existence of any
state of body or bodily feeling, are relevant, when the
existence of any such state of mind or body or bodily
feeling, is in issue or relevant.
[Explanation 1.--A fact relevant as showing the
existence of a relevant state of mind must show that the
state of mind exists, not generally, but in reference to the
particular matter in question."
Explanation 2.--But where, upon the trial of a person
accused of an offence, the previous commission by the
accused of an offence is relevant within the meaning of
this section, the previous conviction of such person shall
also be a relevant fact.]
Illustrations
X X X
(o) A is tried for the murder of B by intentionally
shooting him dead. The fact that A, on other occasions
shot at B is relevant, as showing his intention to shoot B.
The fact that A was in the habit of shooting at people
with intent to murder them, is irrelevant.
X X X
15. Facts bearing on question whether act was
accidental or intentional.--When there is a question
whether an act was accidental or intentional, 1[or done
with a particular knowledge or intention,] the fact that
such act formed part of a series of similar occurrences,
in each of which the person doing the act was concerned,
is relevant.‖
X X X
―43. Judgments, etc., other than those mentioned in
sections 40 to 42, when relevant.--Judgments, orders or
decrees, other than those mentioned in sections 40, 41
and 42, are irrelevant, unless the existence of such
judgment, order or decree, is a fact in issue, or is
relevant under some other provisions of this Act.
Illustrations
X X X
(f) A is tried for the murder of B. The fact that B
prosecuted A for libel and that A was convicted and
sentenced is relevant under section 8 as showing the
motive for the fact in issue.‖
30. As is clear from the bare reading of the afore-quoted statutory
provisions, Section 8 renders the evidence showing previous conduct
or motive relevant and admissible. Similarly, Section 14 stipulates that
the facts showing the state of mind are relevant so long as the existence
of such state of mind itself is relevant. It is, however, the pre-requisite
of the said clause that the existence of the state of mind must be shown
in reference to the matter in question and not generally. Noticeably,
Section 15 ordains that when the issue arises as to whether the act was
intentional or otherwise, the fact that such act formed a pattern with
other acts, on account of a series of similar occurrences in the past,
renders the previous such occurrences relevant.
31. Insofar as the present case is concerned, the specific facts sought
to be brought home pertain to the propensity of the appellant to be
physically abusive and the previous rigors of implication, and
conviction, on similar criminal charge acting as a stimulant triggering,
yet again, his violent streak. The mental disposition owing to the
background of having been adjudged guilty for offence punishable
under Sections 324 and 325 IPC constitute the motive for the offence,
which is the subject matter under the present factual matrix. The
evidence led about previous conviction seeks to throw light on, and
prove, the previous commission of acts resulting in physical injuries
inflicted by the appellant on the deceased and her sister, betraying the
aggressive disposition towards them, and consequentially the motive,
as relevant under Section 8 and the Illustration (o) below Section 8
noted above supports this view. Noticeably, the second explanation
appended to Section 14 of the Evidence Act stipulates that where the
previous commission of an offence by the accused is relevant, it being
reflective of the existence of a relevant state of mind for purposes of
the charge on which he is tried, the previous conviction may be proved
as a fact relevant thereto.
32. We would not extend the earlier episode and conviction as an
evidence that the appellant was likely to commit the offence or deepen
the suspicion or give it a probative value except to the limited extent -
as indicative of intention - for facts on record justify such inference.
The motive and previous similar instances of conscious, voluntary or
intentional acts can be relevant under Sections 8 and 15 of the
Evidence Act when there is nexus and link between such facts and the
fact in issue. The existence of the state of mind behind the intentional
assault (relevant under Section 14) draws force from the motive for
retribution relevant in the light of previous implication and guilt
verdict (relevant under Section 8 and 15) and render referencing to the
previous commission and conviction imperative. We reject the
objection to the evidence being led about the result of the earlier
criminal case for the additional reason that judgment dated 09.03.1995
of the sessions court at Pauri Garhwal is relevant in terms of Sections
8, 14 and 15 of the Evidence Act for purposes of bringing home the
motive and past conduct, reflective of the mental condition it being an
antecedent specific and particular to the deceased. This view also finds
support from Illustration (f) appended below Section 43 quoted earlier.
33. The oral evidence given by PW-2, PW-7 and PW-18 shows the
marital relationship of the deceased and the appellant had been replete
with instances of quarrels and assaults. The incident of 28.11.1993
was subject matter of an adjudicatory process concerning one of the
said assaults. It resulted in findings being returned by a competent
court of law holding the appellant guilty. The said findings are
relevant to support the case for the prosecution that the conduct of the
appellant was such that he would turn violent against the wife and
given the ignominy suffered by him as a result of conviction on
criminal charge in the past. The motive having its origin in the marital
discord is established from the ocular and documentary evidence.
34. PW-2 has testified that there had been a quarrel between the
appellant and the deceased in the morning of 28.06.1996 in the course
of which the appellant had become abusive and violent. She, however,
took it as a routine happening and went away on her duty having left
the house at about 8 AM advising the appellant not to indulge in such
behaviour. She was informed at about 10 AM in the office about the
violent incident and had rushed back home to learn the details of what
had happened.
35. The appellant relies on Shivsharanappa & Ors. V. State of
Karnataka (2013) 5 SCC 705, Surjit Singh & Anr. V. State of Punjab
AIR 1994 SC 110 and Lalla @ Raj Kumar Singh V. State of U.P. 2004
(2) Crimes 101 to argue that the conduct of Seema Mehta (PW-2) was
unnatural and so does not deserve to be believed. The appellant
referred to the judgment of the learned sessions judge, Pauri Garhwal
in the earlier case to point out that the testimony of this witness was
found to be fraught with exaggerations. He refers to her testimony in
the trial court mentioning the incident in the morning of 28.06.1996
wherein the deceased was beaten by the appellant in PW-2's presence.
The argument raised is that given the past conduct, PW-2 could not
have trivialised this incident and proceeded to her office simply after
counselling the appellant.
36. We find the above submissions fallacious. What is to be
subjected to scrutiny here is the deposition of the witnesses in the trial
leading to the impugned judgment. If the learned sessions judge at
Pauri Garhwal in the previous case had found some exaggerations in
her testimony that would not affect the credibility of the witness (PW-
2) in the present case. It may be added that despite the so-called
exaggerations, the testimony of the witness was believed even in the
previous case wherein the appellant was found guilty not only for
having caused injuries on the person of the deceased but also on the
person of PW-2. The mere fact that this witness is sister of the
deceased does not mean her testimony becomes doubtful. On the
contrary, she being privy and a resident of the same room was in the
best position to bring out the true facts.
37. During the course of investigation at the scene of crime, the IO
(PW-19) had found, amongst others, two parts of scissors, broken from
each other. One blade of the scissors (Ex.P1) bearing blood stains was
found lying near the dead body and was seized vide Ex.PW-2/B, after
its sketch (Ex.PW-9/B1) had been prepared, both attested by PW-2 and
PW-9. The other part of the scissors, the blade (Ex.P2), its nut and bolt
were found lying on a shelf during search of the place and were seized
vide separate memo (Ex.PW-2/A), after its sketch (PW-9/C) had been
prepared, this recovery being attested by the aforementioned two
witnesses and PW-12. During the investigation, the IO had also
collected sample of the blood stains lying on the floor and from around
the dead body vide seizure memo (Ex.PW/D), broken pieces of glass
(Collectively Ex.P3) near the lower limbs of the deceased, vide memo
(Ex.PW-2/C), and a tape recorder with cassette (Ex.P4 and P5
respectively) besides blood stained clothes, towel, pillow, bed sheets,
mattress, shoes etc. (Ex.P6 to P15) vide memos (Ex.PW-2/A to F).
38. One part of the scissors (Ex.P1), found lying near the dead body
was sent to the autopsy doctor (PW-3) on 29.06.1996 with the request
(Ex.PW-19/D) for opinion about its possible use to inflict the injuries
noted in the post-mortem examination report. PW-3 gave subsequent
opinion (Ex.PW-3/B), inter alia, drawing a sketch of the said part
instrument recoding her views that the external injuries mentioned in
the autopsy report could possibly have been inflicted with it having
been used as a weapon. On 06.07.1996 the said very part of the
scissors (Ex.P1) was also sent to Dr. Arun Kumar (PW-17) with the
request (Ex.PW-17/B) as to its possible use vis-a-vis the injuries
suffered by the appellant, as noted in the MLC (Ex.PW-1/A). PW-17
recorded his opinion (Ex.PW-17/C) again confirming that the sharp
injury noted in the MLC could possibly have been inflicted with the
said part scissors having been used as a weapon.
39. The witnesses of the scene Meena Chauhan (PW-8) and
Devender Kumar (PW-9) have affirmed on oath that when their
attention was drawn towards the room occupied by the appellant (and
the deceased) in the morning of 28.06.1996, blood was coming out
from beneath the door, which was bolted from inside. Both spoke
about efforts being made by the local residents to get the door opened
but with no immediate success. Upon information reaching the police
station (vide DD no.4A), head constable Satyabir Singh (PW-11) was
the first police official to reach the scene. He has testified confirming
the word of PW-9 in particular that it was only after the arrival of the
police that the door was opened by the appellant. As per the evidence
of PW-11 when he had reached the place, the tape recorder was
running on full volume inside the room. Thus, PW-8 and PW-9 may
not be wrong in stating that they had not heard any cries that might
have been raised for help by the deceased at the time of the assault.
40. It has been the defence of the appellant that some intruder had
entered the room and had fatally stabbed his wife and also wounded
him with the same weapon. As noted earlier, it was a small room with
only one door for gaining entry into or exit from the place. The said
door was bolted from inside. We are not persuaded to accept the
defence plea that the intruder may have put his hand through the
window to latch the bolt back on the door from inside while leaving the
place. There is no evidence showing any such possibility and is rather
farcical. This theory was not suggested to any of the relevant
witnesses. In our considered opinion, this plea raised at the stage of
appeal is nothing but a wild imagination.
41. The possibility of an intruder having come in to commit the
offence and then having gone out after bolting the door from inside by
accessing the bolt through the window is, thus, non-existent. Thus,
reliance on Prem Thakur V. State of Punjab (1982) 3 SCC 462, Mulak
Raj & Ors. V. State of Haryana (1996) 7 SCC 308 and Bhupender @
Kale V. State 2012 Law Suit (Del) 1215 is misplaced.
42. In our judgment, the circumstances here speak for themselves.
The chain is complete and unerringly points to the guilt of the
appellant. Given the above scenario, there can be no doubt about the
fact that the deceased was attacked with the broken blade of scissors by
the appellant and no one else. He had the requisite motive, since he
had to remain in jail for about eleven months in connection with the
incident of 28.11.1993 on his conviction under Section 324 IPC. His
marital life was violent and dissolute. Thus, we uphold the finding that
the appellant had committed the murder of Anju Mehta.
43. It is the argument of the appellant that the investigation has not
been fair or impartial. Reliance is placed on Vinod Kumar Soin @
Kapil Kumar V. State 2009 Law Suit (Del) 137 to argue that the
question as to whether the injuries suffered by the appellant were self-
inflicted (so to as be suicidal) has not been properly probed. Reference
is made to Modi's treatise on Medical Jurisprudence and Toxicology
(24th Edition published by Lexis Nexis Butterworths Wadhwa, Nagpur)
to point out that in case of suicidal or self-inflicted stab injuries
"hesitation cuts" are usually found present. It was argued that since the
opinion of the medical officer, who had examined the appellant in the
hospital on this issue was not ascertained, it cannot be said with
certainty that the injuries suffered by the appellant were self-inflicted.
In the same context, reference is also made to the incised wounds
found in two fingers of the right hand and one finger of the left which,
in the submission of the appellant, renders his plea of they being
defence wounds probable. The counsel argued that inefficient
investigations ought not result in the presumption of innocence being
sacrificed. [Kailash Gour V. State of Assam (2012) 2 SCC 34]
44. We are not impressed with the above noted submissions. As
observed elsewhere in the judgment, the theory of an intruder having
come in and attacked both husband and wife is unfounded. The only
door in the single room tenement was bolted from inside. The husband
and wife only were present inside and there was no possibility of any
intruder barging in. The scissors, as the evidence clearly shows, had
been broken into two parts. It was one of the said parts which was
used in the vicious attack on the person of the deceased. The violence
with which she was assaulted by one of the two blades of the scissors
is vivid from the fact that she suffered as many as fifty wounds, a
number of them cutting deep into her insides. The medical
jurisprudence does not lay down as an exceptional rule that in every
case of suicidal self-inflicted stabbing there would always or invariably
be some hesitation cut marks. Therefore, omission on the part of the
investigating officer to elicit further opinion in such regard from the
medical officer is of no adverse effect. The injuries on his own fingers
rather reinforce the fact that he had wielded the scissors blade in his
hands.
45. Given the factual matrix, where his wife was found lying dead
due to extensive stab wounds inflicted in her abdominal region, it is
quite apparent that the stab injuries suffered again in the abdominal
region by the appellant were inflicted upon himself by him and no one
else. Clearly, the intention behind inflicting such injury upon himself
was to bring about his own death. Thus, the charge of attempt to
commit suicide also stands established.
46. For the foregoing reasons, we are of the view that the learned
trial court has reached the correct conclusions in the impugned
judgment. There is no error or illegality in the view taken. The appeal
is found devoid of substance and is dismissed.
47. The appellant is directed to surrender to custody within fifteen
days of this judgment to serve the sentences awarded against him. We
direct the learned Additional District and Sessions Judge presiding
over the trial court (the Successor Court) and Station House Officer
(SHO) of Police Station Mukherjee Nagar to take necessary steps to
ensure compliance with above directions in accordance with law.
R. K. GAUBA
(JUDGE)
SANJIV KHANNA
NOVEMBER 20, 2015/VLD (JUDGE)
