Surinder @ Bhola vs State (Nct Of Delhi)
2017 Latest Caselaw 7008 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Judgment reserved on: 06.07.2017
                                         Judgment pronounced on: 06.12.2017

CRL.A.84/2012

SURINDER @ BHOLA                                          ..... Appellant

                            versus


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

Advocates who appeared in this case:
For the Appellant   : Ms. Saahila Lamba, Advocate
For the Respondents : Ms. Rajni Gupta, APP

CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE NAJMI WAZIRI

                                JUDGMENT

SIDDHARTH MRIDUL, J

1. The present appeal under section 374(2) of the Code of Criminal

Procedure,1973 (hereinafter referred as 'Cr.P.C') assails the judgment and

order on sentence dated 29.11.2011 and 20.12.2011, respectively, rendered

by the Ld. Additional Sessions Judge/Special Judge (NDPS), Dwarka

Courts, New Delhi in Sessions Case No. 55/1/10, thereby, convicting the

appellant for the offence punishable under section 302 of the Indian Penal

Code,1860 (hereinafter referred to as 'IPC').

2. By way of the order on sentence dated 20.12.2011, the appellant has

been sentenced to undergo life imprisonment and pay a fine of Rs.10,000/-

for the offence punishable under Section 302 of the IPC.

3. Charge was also framed against the appellant as well as his mother

and sister under Section 498A/34 of the IPC, however, they were all

acquitted of the same by the Trial Court by way of said judgment and order

on sentence dated 29.11.2011 and 20.12.2011, respectively.

4. The fulcrum of the case of the prosecution is that on 27.02.2010 the

appellant by way of manual strangulation caused the death of the deceased at

her matrimonial house i.e. House No.A-1/387, Gali No.3, Madhu Vihar,

Delhi (hereinafter referred to as the 'matrimonial house'). The situs is the

first floor of the matrimonial house.

5. On 27.02.2010 around 6:41 P.M., a call on 100 number was made by a

relative of the deceased, namely, Shiv Kumar (PW-10), concerning death of

a lady at the matrimonial house. Subsequent thereto, the information was

sent to the Zebra net and a report was received from Zebra-88 net officers

confirming the factum of death of the deceased. On the basis of the report

received, DD No.40B [Ex.PW4/B] was recorded by Constable Upendra

Mann (PW-3) at Police Station Dabri (hereinafter referred to as 'Police

Station'), and marked to Constable Brij Mohan (PW-6) and ASI Daya

Shankar (PW-11).

6. PW-6 and PW-11 proceeded to the matrimonial house where the

deceased was found lying dead at the first floor of the premises. The

information about the incident was given to the SDM and pursuant to his

directions the dead body of the deceased was sent to the Mortuary, DDU

Hospital, where it was preserved for 72 hours. The family members of the

deceased in Nepal were also informed about the incident.

7. On 02.03.2010, the brother of the deceased, Sh. Ram Shamsher

Paswan (PW-9) arrived at Delhi from Nepal and identified the body of the

deceased at the DDU Hospital. Statement of PW-9 was recorded by the SDM

[Ex PW4/I] and post-mortem was conducted. On the basis of the statement

of PW-9, the subject FIR No.55/10 was registered under the provisions of

sections 498/304B of the IPC [Ex.PW2/A].

8. The scaled site plan [Ex.PW12/B] was prepared and the receipt of

jewellery was seized [Ex.PW6 and 7]. In the post mortem report [Ex.PW4/J],

it was opined that it was a case of throttling and the pressure over the neck

was sufficient to cause death in the ordinary course of nature. The time of

death was opined to be approximately 72 hours prior to the time of starting

the autopsy i.e. at 4:55 PM on 27.02.2010.

9. On 02.03.2010, disclosure statement of the appellant was recorded

[Ex.PW11/A], admitting to the demands of dowry and causing murder of the

deceased. Pursuant to the disclosure statement, the appellant was arrested

vide arrest memo Ex.PW7/D.

10. After completion of investigation charge-sheet was filed and charges

were framed under section 498A/34 IPC, against the appellant as well as his

mother and sister. In addition, charge under section 302 IPC was also framed

against the appellant. Thereafter, the matter was committed to trial.

11. At the trial, the prosecution examined 12 witnesses in support of its

case.

12. The appellant in his statement under section 313 Cr.P.C has stated that

he was not present at the matrimonial house at the time of the incident and

had reached there from work around 6:00 P.M. It has been stated that when

he arrived at the matrimonial house public persons and police officers were

gathered there. Further, it has been stated by him that the door of the

matrimonial house was lying broken, which fact he brought to the notice of

the police officers but to no avail.

The appellant in his defence has also summoned Mr. Shobh Ram (DW-1),

his neighbour. DW-1 has deposed to the effect that the appellant as well as

his mother and sister were not present at the matrimonial house at the time of

the incident and the back gate of the matrimonial house was lying broken,

showing signs of forcible entry. It was further deposed by him that the

matrimonial house was ransacked.

13. Learned counsel appearing on behalf of the appellant whilst placing

reliance on the testimony of DW-1 would urge that the appellant has been

falsely implicated in the present case, inasmuch as, the murder has been

committed by an intruder(s) who forcibly entered the matrimonial house by

breaking open the rear door thereof.

14. It would further be urged that the appellant was not present at the

matrimonial house at the time of the incident. The offence was committed at

a time when the appellant was expected to be working for his livelihood. In

support of this submission reliance would be placed on the decisions of a

Division Bench of this Court in Bhupender @ Kale v. State arising out of

Crl. Appeal No. 1397/2010, and Vijay Pal v. State reported as ILR (2009)

Supp. (7) Delhi 297.

15. Further, it would be submitted that since there were other members

residing in the matrimonial house, it would not be safe to conclude that the

appellant alone might have committed the offence.

16. It would then be asserted that there has been a delay of 3 days in the

registration of FIR, giving rise to suspicion of subsequent deliberation in the

registration of the FIR.

17. Further, learned counsel would urge that non-examination of Montu

(neighbour of the deceased),casts a serious doubt on the case of the

prosecution.

18. Learned counsel would then invite the attention of the Court to the

statement of PW-9 under section 161 of the Cr.P.C, which has been recorded

belatedly on 10.03.2010, to urge that the appellant has been falsely

implicated in the present case.

19. Lastly, it would be urged that no motive has been proved for the

appellant to commit the murder of the deceased.

20. Per contra, learned Additional Public Prosecutor appearing on behalf

of the State whilst supporting the impugned judgment in its entirety would

urge that the findings of the Trial Court require no interference. It would be

submitted that the delay of 3 days in the registration of the subject FIR was

occasioned because prior to 02.03.2010 no cogent reason was demonstrated

for the registration of the case.

21. We have heard learned counsel appearing on behalf of the parties and

perused the entire case record.

22. There is admittedly no eyewitness to the murder of the deceased. No

direct evidence has been brought to the notice of the Court in the present

case. The present is a case of circumstantial evidence and, therefore, it would

be profitable to refer to the legal position with respect to proving a case

based on circumstantial evidence. The Hon'ble Supreme Court of India

in Sharad Birdhichand Sarda v. State of Maharashtra reported as 1984 (4)

SCC 116, has laid down five golden principles, which are stated to constitute

the "panchsheel" of the proof of a case based on circumstantial evidence.

These five principles are as follows:

(i) that the circumstances from which the conclusion of guilt is to

be drawn must be or should be and not merely "may be" fully

established;

(ii) that the facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they should

not be explainable on any other hypothesis except that the

accused is guilty;

(iii) that the circumstances should be of a conclusive nature and

tendency;

(iv) that they should exclude every possible hypothesis except the

one to be proved; and

(v) that there must be a chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistent with

the innocence of the accused and must show that in all human

probability the act must have been done by the accused.

23. The incident in the present case has transpired within the confines of

the matrimonial house and therefore it would also be relevant to refer to the

dictum of the Hon'ble Supreme Court in Trimukh Maroti Kirkan v. State of

Mahrashtra reported as 2006 (10) SCC 681, wherein it was observed as

follows:

"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for

the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties.

(See Stirland v. Director of Public Prosecutions [1944 AC 315 : (1944) 2 All ER 13 (HL)] -- quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri) 135] .) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

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

15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."

(Emphasis supplied)

24. Therefore, there is no gainsaying the legal position that the courts

while adjudicating a case of circumstantial evidence would be guided by the

principles laid down by the Hon'ble Supreme Court in Sharad Birdhichand

Sarda (supra) and the initial burden to prove the guilt of the accused would

be on the prosecution, however, the principles of circumstantial evidence

need not be applied in the strictest sense, inasmuch as, under Section 106 of

the Indian Evidence Act, 1872, there would be corresponding burden on the

accused to give a cogent explanation as to how the crime was committed.

25. PW-9, the elder brother of the deceased, has deposed that on

27.02.2010, when he was in Nepal, the appellant telephonically informed

him about the death of the deceased.

26. PW-10 has deposed that on the date of the incident he received a call

from PW-9 asking the former to verify the factum of death of the deceased.

Subsequent thereto, PW-10 made a call to 100 number apprising them of the

information received by him regarding the death of the deceased and reached

at the matrimonial house.

27. PW-1 has deposed that around 6:41 P.M., pursuant to receiving the

PCR call from PW-10; concerning death of a lady at the matrimonial house,

police officers reached at the matrimonial house within 5 minutes. As per the

report received therefrom, the deceased complained of headache around 1:30

PM and at 2:00 PM she fainted, pursuant to which she was taken to a doctor

where she was declared dead.

28. PW-11, has deposed that after DD No.40B was marked to him around

6:50 PM on the date of the incident, he along with PW-6 went to the house

of the deceased, where the appellant as well as his mother and sister were

also present. The dead body of the deceased was discovered on the first

floor of the matrimonial house. PW-11 has further deposed that on

27.02.2010 he didn't conduct inspection of the matrimonial house to

ascertain whether there was any forcible entry. Further, that neither the

appellant nor his mother or sister complained to him of forcible entry.

29. It has been deposed by PW-6 that on receipt of DD No.40B he

alongwith PW-11 reached the matrimonial house where the dead body of the

deceased was found.

30. Inspector Satbir Singh (PW-12) joined the investigation on

02.03.2010. The appellant was arrested by PW-12 on 02.03.2010 [vide

memo Ex.PW7/C]. The disclosure statement of the appellant was also

recorded. It has been deposed by PW-12 that he had not investigated if there

was any forcible entry in the matrimonial house for theft or any other

offence. However, he had inspected the matrimonial house, including, doors,

windows, etc. thereof.

31. DW-1 has deposed that around 4 PM on the date of the incident he

went out for a walk and when he came in front of the matrimonial house, he

found the rear iron gate thereof broken and lying on the ground. The gate

was lying broken half on the inside and half on the outside. Further, that the

there was even a crowd at the front of the matrimonial house along with

whom he entered the premises and found the dead body of the deceased. It

has been further deposed by him that neither the appellant nor his mother or

sister were present at the matrimonial house at that time, and the mother and

sister of the appellant returned around 5:30 PM, whereas, the appellant

returned around 6:30 P.M. As per the testimony of DW-1, the matrimonial

house was also lying ransacked.

32. The Trial Court whilst rejecting the possibility of there being forcible

entry and holding DW-1 to be an unreliable witness, observed as follows:

"At this stage, the defence taken by the accused vide the testimony of DW 1 Shobh Ram is relevant to be discussed. DW 1 testified that at about 4pm on 27.2.2010 while he was going for a walk he saw crowd in the house of accused persons and the rear gate of the house was found broken and lying on the ground. That on entering the house he found the deadbody of the wife of accused Surender @ Bhola and none of the accused persons were present at house at that time. The mother and sister of accused Surender came there at 5:30pm

whereas accused Surender came there at 6:30pm. However, the said defence as already discussed above, was neither put to PW 6 nor to PW 11. So far the second IO i e PW 12 Inspt. Satbir Singh is concerned, it was suggested to him that the accused had complained to him about forcible entry in his house by some unknown person. It is important to observe that PW 12, had joined the investigation of this case on 2.3.2010 being the second IO but no such suggestion was given to PW 11 who had initially investigated the matter on 27.2.2010 itself when the incident had taken place and had reached there alongwith PW 6. In such circumstances the defence taken by the accused that there was some forcible entry in his house by some person appears to be after thought and concocted. Moreover DW 1 is also not a reliable witness as, as per the prosecution the deceased was residing alongwith the accused on the first floor of the house but DW 1 did not testify that he had gone to the first floor of the house and then seen the dead body of Sadhana, rather as per his testimony there were two iron gates at the house of the accused, one on the front side and other in the rear portion and it is the rear gate which was found broken and lying on the ground half inside and half outside the house and his such testimony leads to the inference that he was talking about the ground floor of the house, whereas accused was residing at first floor. PW 11 ASI Daya Shankar has categorically testified that in pursuance of DD No 40B he alongwith Ct Brij Mohan reached the spot ie on the first floor of the house and he has nowhere testified about any iron gate lying broken on the ground floor nor any suggestion was given to this effect to the witness that the dead body was lying in a room on the ground floor and the broken door was lying half inside and half outside the house. Besides, DW 1 has testified in his cross examination by Ld. Addl. PP for State that when he saw the dead body of the deceased there was small injury mark on her right side forehead but he did not notice any other injury. His said testimony is contrary to the post-mortem report Ex. PW 4/J wherein no injury has been shown to be found on the forehead of the deceased as deposed by DW 1 to the contrary there were three other injuries found on her person ie Nail mark over anterior aspect, bruises on the outer aspect of right forearm and bruises on the inner aspect of left arm. In view of

such material discrepancies in the testimony of DW 1 and the postmortem report Ex PW 4/J no reliance can be placed on the statement of DW1 and he appears to be a false witness introduced by the accused to save himself. Besides, though it is the defence of accused Surender that there was forcible entry by some unknown person in his house resulting in death of his wife but till date the accused has never alleged that there was any theft or robbery effected in his house or any article was found missing nor it is alleged that there was any attempt of any sexual assault on the person of his wife, so what can be the motive of the person who had forcibly entered the house, particularly, when the accused has not alleged that he had enmity with anyone who could commit such offence with his wife for any reason. At the same time, it is observed that though the accused has taken defence of forcible entry but he has nowhere lodged complaint with the police or with any other authority in this regard till he was arrested by the police on 2.3.2010 from the date of incident nor he gave any such information about forcible entry even to PW 9 on telephone that she was killed by someone who had forcibly entered the house, particularly in view of the fact that he has not disputed the testimony of PW 9 that he had received telephone call from accused Surender regarding the death of his wife. If the defence of the accused is believed to be correct, then PW9 was the first person to whom he had given the information regarding the death of his wife and definitely he could inform him the manner in which she had been killed by someone after entering the house forcibly in his absence. At the same time, it is observed that the defence of forcible entry is taken by the accused for the first time during the testimony of PW 12 but prior to that during the entire investigation the defence taken by the accused was that the deceased was feeling unwell and she had been taken to the private doctor at 2pm and she was declared brought dead. As per the testimony of PW 10 Shiv Kumar, after he received the information from PW 9 regarding the death of Sadhana he informed the police on 100 number and went to the matrimonial house of Sadhana at Madhu Vihar where he found Sadhana lying dead. He inquired from accused Surender as to how she had died, to which he replied that she was having headache and was given medicine for the same

due to which she died. Though, a suggestion was given to the witness that accused had not made any such statement before him, however, the testimony of PW 10 to this effect finds corroboration from the PCR form Ex PW 1/A wherein it is mentioned :

"LADY Sadhana W/O SURENDER AGE 22 YEARS ADDRESS SAME SHADI KO 4 YEARS HUYE HAIN 1 LADKI 8 MACHINE KIHAI 1.30 PM PARSIR ME DARD BATAYA 2.00PM PAR BEHOSH HO GAI PRIVATE DOCTOR KE PAAS LE GAYE. JAHAN DOCTOR NE DEAD DECLARE KAR DIYA WLP 27/02/201019.06.13 RCD 5 MIN."

PW 1 Ct. Sanjeev Negi who recorded the PCR form Ex PW 1/A has proved the same but he was not subjected to cross examination by the accused and no suggestion was given to him that no such information was received by him from Zebra 88 Net Officers who had visited the spot on receipt of PCR call. At the same time accused made different statement before PW 11 ASI Daya Shankar as he informed him that the deceased was suffering from heart disease and blood pressure and for this reason she died, though PW 11 was confronted with his statement U/s 161Cr. PC Ex. PW 11/D1wherein this fact does not find mention, however merely for this reason his testimony cannot be disbelieved as this fact is mentioned in the brief facts Ex PW 4/C prepared by PW 11 on 2.3.2010. In the brief facts, it is categorically mentioned by PW11 that accused during interrogation disclosed to him that she was suffering from blood pressure and on this account she had expired. However, PW 11 has not been cross examined regarding the mentioning of this fact in the brief facts Ex PW 4/C, on being informed by the accused and this fact stands proved on record that he had taken this defence during investigation that she had died on account of illness. Thus it is seen that the accused has taken different plea of defence during investigation and during the trial, for which adverse inference is liable to be drawn against the accused."

33. The Trial Court in our considered view, has rightly held that DW-1 is

not a reliable witness and that there was no forcible entry in the matrimonial

house on the date of the incident, inasmuch as:

(i) The call made by PW-10 to 100 number has been proved by the

PCR information form [Ex.PW1/A]. Neither in the initial report

received by PW-1; pursuant to the call made by PW-10 to the

police, nor the testimony of either PW-6 or PW-11; police

officers who first arrived at the matrimonial house from the

police station, is there any mention of forcible entry or a broken

gate.

(ii) In the cross examination of PW-6 and PW-10, no suggestion

was put concerning forcible entry.

(iii) PW-11 has denied of any complaint made to him by the

appellant or his mother or sister concerning forcible entry in the

matrimonial house.

(iv) The testimony of PW-12 cannot be discredited on the sole basis

that the factum of inspection of the matrimonial house does not

find mention in the case diary. PW-12 having inspected the

doors, windows, etc. of the matrimonial house has denied the

suggestion put to him that an intruder murdered the deceased.

(v) It is incomprehensible that DW-1 or the purported crowd was

able to notice the rear gate of the matrimonial house from the

front of the premises. Furthermore, nowhere has it been deposed

by DW-1 that they proceeded to the first floor of the

matrimonial house, where the dead body of the deceased was

found.

(vi) Contrary to the deposition of DW-1 that there was an injury

mark on the forehead of the deceased; post-mortem report does

not record any such injury.

(vii) Even assuming the version of DW-1to be truthful, it is

inconceivable that no one from the crowd of citizens thought it

to be prudent to inform the police authorities about the incident;

having discovered about it at as early as 4 PM. The first call to

the police authorities was made by PW-10 around 6:40 PM.

(viii) As per the testimony of DW-1 the appellant arrived at the

matrimonial house at 6:30 P.M., whereas, the latter himself in

his statement under section 313 Cr.P.C has stated that he

returned to the matrimonial house from work at 6:00 P.M.

(ix) No complaint has been made by the appellant or his family

members concerning robbery or theft from the matrimonial

house. There is no evidence on record to support the version of

DW-1 that the matrimonial house was lying ransacked. In the

post-mortem report it has nowhere been mentioned that the

deceased was subjected to sexual assault. Further, it has not

been alleged by anyone that the appellant or deceased shared

enmity with anyone. Therefore, there was no motive for any

person on the outside to commit the murder of the deceased.

34. Having ruled out the aspect that an outsider caused the murder of the

deceased, we shall now proceed to examine whether the appellant was

present at the matrimonial house during the time of the incident.

35. It is a settled law that the conduct of the accused preceding and

subsequent to the commission of the offence are relevant facts. [Ref:

Ganesh Lal v. State of Maharashtra reported as (1992) 3 SCC 106]

36. In the statement of PW-9 recorded by the SDM [Ex.PW4/I], the latter

has stated that the appellant telephonically informed him that the deceased

has committed suicide. No suggestion was put to PW-9 in this behalf.

37. PW-10 has deposed that when he reached the matrimonial house on

the date of the incident the appellant as well as his mother, father and sister

were already present. The dead body of the deceased was also lying there. It

has been further deposed by PW-10 that upon enquiry from the appellant vis-

à-vis the circumstances leading to the death of the deceased, the latter

informed him that the deceased died as a result of taking medicine for

headache. On further enquiry PW-10 was told by the sister of the appellant

that the deceased was taken to a doctor after the deceased took the medicine,

however, due to non-availability of a doctor she was later taken to a hospital,

where she died. PW-10 has further testified that there was no hue and cry at

the matrimonial house. The suggestion put to PW-10 that he was not told by

the appellant that the deceased died by taking medicine for headache was

also denied by him.

38. PW-11 has deposed that on 27.02.2010, upon inquiry from the

appellant, it was disclosed by the latter that the deceased was suffering from

heart disease and blood pressure problem and for this reason she died. It

would further be relevant to refer to the brief facts [Ex.PW4/C] prepared by

PW-11 on 02.03.2010. In the said document it has been recorded by PW-11

that on the date of the incident, during the course of investigation at the

matrimonial house, it was disclosed that the deceased was suffering from

blood pressure and she was taken to a nursery home where she was declared

dead. However, the fact about the deceased suffering from blood pressure or

heart disease does not find mention in the statement of PW-11 under section

161 Cr.P.C.

39. Further, it would be relevant to refer to the testimony of PW-1 in this

behalf. PW-1 has also testified on the lines of the contents of the said

document Ex.PW4/C. PW-1 has deposed that the report received by him

pursuant to the call made by PW-10 on 100 number, also records that the

deceased was not feeling well on the date of the incident and she fainted

around 2:00 P.M. Thereafter, she was taken to a doctor where she was

declared dead. The appellant has put no suggestion to PW-1in relation to the

said report.

40. Reference may also be made to the response of PW-12 to a court

question put to him. It has been deposed by PW-12 that he made enquiries

from one Dr. Jain, the doctor to whom the deceased was taken to on the date

of the incident. The doctor informed him that the deceased was already dead

when she was brought to the hospital. But this fact was neither mentioned in

the case diary nor was the statement of the doctor recorded by PW-12.

However, in this behalf, no suggestion was put to PW-12.

41. The appellant in his statement under section 313 Cr.P.C has stated that

he was not present at the matrimonial house at the time of the incident and

reached there at 6:00 P.M. from work. It has been further stated by him that

when he reached back at the matrimonial house he found police officers and

public persons gathered there.

42. The Trial Court with respect to the presence of the appellant at the

matrimonial house during the time of the incident has held as follows:

"As per the case of the prosecution vide DD No 40B the information was received in the PS Dabri at 06:41pm from Control Room to the effect that the information was received by PCR from Shiv Kumar from telephone No. 9910133383 that one lady had died at house No. A1/387 Gali No.3 near Sunrise School, Madhu Vihar and it appeared to be a dowry death. PCR form Ex.PW 1/A was filled in to this effect. The PCR was sent to the spot and the information was received back in the Delhi Police Control Room. DD No. 40 B recorded subsequent to receipt of the information through PCR was marked to PW11 ASI Daya Shankar who alongwith PW 7 Ct. Vinod Kumar reached the spot and found that the dead body of the deceased was lying on the first floor of the house inside the room. All the three accused persons were also present in the house and on enquiry accused Surender informed him that deceased was suffering from heart disease and blood pressure and for this reason she had died. DD No. 40B has been proved as Ex. PW 3/A. As per the case of the

prosecution, it is the accused Surender who had given the information on telephone to PW 9 Ram Shamsher Paswan, the brother of deceased Sadhana about her death and consequently PW 9 gave information in this regard to PW 10 Shiv Kumar, his relative at Delhi who immediately on receipt of this information informed the PCR from his mobile phone bearing No. 9910133383 regarding which the prosecution has proved on record the PCR form as Ex PW 1/A and the information was sent by the PCR to the concerned PS whereby DD No 40B Ex PW 3/A was recorded. PW 9 has categorically testified in his examination in chief that he was telephonically informed by accused Surender that Sadhana had died and that on receipt of this information he passed it on to his uncle. The aforesaid testimony of PW 9 has not been disputed or rebutted in any manner during cross examination by the defence. No suggestion was given to the witness that accused Surender had not given any such information to him. Similarly, PW 10 Shiv Kumar has also categorically testified regarding receipt of the above information on telephone from PW 9 and that thereafter he informed the police on 100 number but the testimony of this witness too was not rebutted during cross examination as neither any question was put in this regard nor any suggestion was given that the accused had not given any such information to PW 9. Though it is claimed by the accused that he was not present at the spot at the time of incident in his statement U/s 313 Cr.PC and has denied that he had made any call to PW 9 informing that Sadhana had died. However, the said defence was not put either to PW 9 or PW 10 that since he was not present at the spot and as such he could not have intimated about the death of Sadhana to PW9. Besides, it is seen that the accused had taken the defence in his statement U/s 313 CrPC that on that day he was not present at his house and had reached there at about 6pm and found that public had collected there and police was also there and he saw the door of his house was lying broken and he brought this fact to the notice of the police but they did not listen to him. However, it is PW 6 and PW 11 who had initially visited the house of the accused after the incident on receipt of DD No 40 B Ex PW 3/A. PW 6 was not subjected to any effective cross examination, it was not suggested to him that when police reached there the accused Surender was

not present there or that he arrived at the spot after the arrival of the police and that the door of the house was found broken. Similarly, so far PW 11 is concerned, though he was suggested that the accused persons were not present at the spot on 27.2.2010 and had arrived there at about 6pm but no suggestion was given to the effect that the gate of the house was lying broken and the attention of PW 11 was drawn to this effect."

43. A bare perusal of the testimonies of the witnesses, as discussed

hereinabove, would show that the appellant has adopted two different

defences, one at the time of his statement under section 313 Cr.P.C and other

prior to that.

44. Firstly, the defence taken by the appellant prior to his statement being

recorded under section 313 Cr.P.C was that the appellant died due to ill

health. Whereas, PW-10 was informed by the appellant that the deceased

died due to medicine taken for headache and further by the sister of the

appellant that the deceased was declared dead when taken to the hospital,

PW-11 was informed by the appellant that the reason for untimely death was

heart disease and blood pressure problem. The testimony of PW-11 in this

behalf cannot be rejected on the ground that it was not so recorded in his

statement under section 161 Cr.P.C, inasmuch as, it has been so recorded in

the brief facts [Ex.PW4/C] prepared by him on 02.03.2010. The contents of

this document Ex.PW4/C are further substantiated by the testimony of PW-1.

Furthermore, it would be relevant to observe that the appellant had

telephonically informed PW-9 that the deceased has committed suicide. The

factum of this call can be reasonably inferred from the call made by PW-9 to

PW-10 and thereafter the call made by the latter to 100 number, which have

been proved by the call detail records of the former and form Ex.PW1/A,

respectively. The call on 100 number was made by PW-10 around 6:40 P.M.

The time of death is opined to be 4:55 P.M. PW-9 was staying in Nepal, if it

had not been for the appellant, there was no way for PW-9 to get to know

about the death of the deceased so early in point of time; in order to enable

him to inform PW-10 about the same.

Moreover, no suggestion was even put to PW-10 vis-à-vis his testimony on

the aspect that the sister of the appellant told him that the deceased was

declared dead when taken to the hospital after taking medicine for headache.

In addition, it would be relevant to note that no suggestion was put to PW-12

in relation to his response to the court question on the doctor to whom the

deceased was taken on the date of the incident, where she was declared dead.

45. Secondly, the defence taken by the appellant at the time of trial in his

statement under section 313 Cr.P.C was that he was not present at the

matrimonial house during the time of the incident, and the murder was

committed by an outsider who forcibly entered the matrimonial house by

breaking open the rear gate. The plea of forcible entry has already been

disbelieved. Insofar as the plea that the appellant was not present at the

matrimonial house during the time of the incident is concerned, it would be

relevant to note that the appellant had stated that he had gone out for work

and came back at 6:00 P.M., whereas, DW-1 had stated that the appellant

came back at 6:30 P.M. In addition, there is no evidence on record to show

that the appellant was working somewhere and he normally used to return

back home around 6:00 P.M.

46. In view of the foregoing discussion, it is evident that the appellant

tried to resort to varying defences at different points in time. Till the time the

statement of the appellant under section 313 Cr.P.C was not recorded, it was

not his stand that he was not present at the matrimonial house during the

time of the incident. It was only after the false story concerning illness set up

by the appellant was brought to light by the post-mortem report that the

appellant was arrested on 02.03.2010, and he resorted to the stand that he

was at work during the time of the incident. However, this plea is also not

substantiated, inasmuch as, no proof of work is available on record and the

defence witness himself has discredited the statement of the appellant in

relation to the time when he returned back home. The conduct of the

appellant in taking varying defences at different points in time is inconsistent

with the hypothesis that he was not present at the matrimonial house during

the time of the incident.

47. The alibi sought to be set up by the appellant that he was not present

at the matrimonial house during the time of the incident and reached there

only at 6:00 PM, appears to be an afterthought and is liable to be rejected.

An adverse inference is to be drawn that the appellant was present at the

matrimonial house during the time of the incident.

48. Insofar as the reliance has been placed by learned counsel for the

appellant on the decision of this Court in Bhupender @ Kale (supra), it

would be relevant to refer to the classification made therein of the decisions

of the Hon'ble Supreme Court on the point of death of a wife in her

matrimonial home:

(i) In the first category fall the decisions where it is proved by the

prosecution that the husband was present in the house when the

wife suffered a homicidal death and rendered no explanation as

to how his wife suffered the homicidal death;

(ii) In the second category are the decisions where the prosecution

could not prove the presence of the husband in the house when

the wife suffered a homicidal death but the circumstances were

such that it could be reasonably inferred that the husband was in

the house and the husband failed to render any satisfactory

explanation as to how his wife suffered a homicidal death. The

circumstances wherefrom it could be inferred that the husband

was in the house would be proof that they lived in the house and

used to cohabit there and the death took place in such hours of

the night when a husband was expected to be in the house i.e.

the hours between night time and early morning;

(iii) In the third category would be proof of a very strong motive for

the husband to murder his wife and proof of there being a

reasonable probability of the husband being in the house and

having an opportunity to commit the murder; and

(iv) In the fourth category are the decisions where the wife died in

her matrimonial house but there was no evidence to show

presence of the husband in the house at the time of the death of

the wife and the time when the crime was committed was not of

the kind contemplated by the decisions in category II and was of

a kind when husbands are expected to be on their job and there

was either no proof of motive or very weak motive being

proved.

49. The reliance placed by learned counsel for the appellant on the fourth

category of cases is misplaced, inasmuch as, the presence of the appellant

has been proved at the matrimonial house at the time of the incident and no

rational explanation is forthcoming from him as the how the incident

transpired. Therefore, the present case falls under the first category of cases

mentioned hereinabove.

50. The decision in Vijay Pal (supra) is of no aid to the appellant and is

distinguishable on the facts of the present case, inasmuch as, in that case the

incident transpired in the wee hours in the room where the accused used to

sleep with the deceased. Further, in that decision the accused (husband) was

convicted for the murder of his wife.

51. PW-4 on external examination of the deceased found, inter alia:

a) " Nail marks present over anterior aspect of neck just lateral to

thyroid cartilage 3 in number on right side and 4 in number on

left side. They were all separate to each other by 2x4mm of size

4x9mm reddish brown in colour"

b) "Bruises present on outer aspect of right forearm 2 in number of

size of 2.2x1.0 cm and 2.5x1.4 cm muscle deep under collection

of clotted blood, dark reddish colour"

c) "Bruise present on inner aspect of left arm size 3.0x1.8 cm

muscle deep under collection of clotted blood, dark reddish

colour"

52. From the external examination it can be reasonably inferred that in

order to prevent resistance, while pressure was being imparted on the neck of

the deceased, the arms of the deceased were caught hold by another

person(s), leading to bruises. Therefore, the appellant was not acting alone.

The assistance could very well be from the other inmates of the matrimonial

house, however, that question has neither been investigated by the police nor

dealt with by the Trial Court. Be that as it may, we are not to decide the

involvement of other inmates of the matrimonial house, inasmuch as, only

the appellant has been charged for the offence punishable under section 302

IPC. Although, this possibility will not lead to the acquittal of the appellant if

other circumstances inconsistent with the innocence of the appellant are

proved.

53. In this behalf reliance may be placed on the decision of the Hon'ble

Supreme Court in Ganesh Lal v. State of Maharashtra reported as (1992) 3

SCC 106, wherein, on appreciation of the evidence on record it was

concluded that inmates alone have committed the murder of the deceased

wife. However, in the absence of appeal against acquittal of other inmates of

the house, the conviction of appellant husband was confirmed.

54. Insofar as the question concerning non-examination of Montu,

neighbour of the appellant, is concerned it would be relevant to observe that

his deposition may have been relevant to prove or disprove the presence of

the appellant at the matrimonial house during the time of the incident.

55. However, the non-examination of Montu would not create a dent in

the case of the prosecution, inasmuch as, the presence of the appellant has

otherwise been proved by the evidence on record.

56. Delay in lodging the first information report is not necessarily fatal to

the case of the prosecution. However, the court must take notice of the fact

that the report was lodged belatedly. This fact has to be considered in the

background of the facts and circumstances in each case and is a matter of

appreciation of evidence. In the light of the totality of the evidence, the court

of fact has to consider whether the delay in lodging the report adversely

affects the case of the prosecution. [Ref: Ramdas & Ors v. State of

Maharashtra reported as (2007) 2 SCC 170]

57. In the present case, the fateful incident occurred on 27.02.2010. PW-9,

the brother of the deceased was a resident of Nepal. PW-9 had informed PW-

11 that it would take him 2-3 days to reach Delhi. Pursuant thereto, under the

directions of the SDM, the dead body of the deceased was got preserved in

the DDU Hospital for 72 hours. PW-9 arrived at Delhi on 02.03.2010 i.e. the

date of the registration of FIR, and identified the body of the deceased. The

statement of PW-9 [Ex.PW4/I] was recorded by the SDM (PW-8) at the

DDU Hospital on 02.03.2010 itself. Allegations of demand of dowry and

physical assault at the hands of the appellant as well as his mother and sister

were leveled in the said statement. An endorsement [Ex.PW8/A] was made

by the SDM (PW-8) on the statement, directing the Station House Officer of

the Police Station to take necessary action as per the law. Consequent

thereto, the subject FIR was registered on the basis of the said statement of

PW-9.

58. Prior to the recording of the statement of PW-9 by the SDM there was

no cogent material on record against the appellant as well as his mother and

sister in support of the charge under Section 498A IPC. Furthermore, prior to

the autopsy (conducted on 02.03.2010), there was no material available

before the police authorities to register an FIR under Section 302 IPC. It was

only after the post-mortem report that the said story concocted by the

appellant concerning the circumstances leading to the death of the deceased

was found to be false and the cause of death was found to be otherwise. Even

otherwise, there was no reason for the police officials to falsely implicate the

appellant.

59. In view of the foregoing discussion, the delay in the registration of the

subject FIR does not adversely affect the case of the prosecution. The delay

does not appear to be a result of subsequent deliberations.

60. It is a settled proposition that unless the investigating officer is in clear

terms asked about the delayed examination of a witness, the defence cannot

gain an advantage therefrom [Ref :Ramanand Yadav v. Prabhu Nath Jha

reported as (2003) 12 SCC 606].

61. In the present case, although the statement of PW-9 was recorded by

the investigating officer belatedly i.e. on 10.03.2010, no suggestion was put

to the latter concerning the reason for such delay. Furthermore, the delay of 8

days in recording the statement of PW-9 cannot be said to be substantial so

as to give rise to any suspicion, more so when the statement of PW-9 was

recorded by the SDM (PW-8) on 02.03.2010 itself.

62. Therefore, the appellant is not entitled to gain any advantage from the

delayed examination of PW-9.

63. No doubt that in a case relating to circumstantial evidence motive does

assume great importance but to say that the absence thereof would dislodge

the prosecution story in its entirety is perhaps giving the factor of motive an

importance which is not due. Motive is in the mind of the accused and can

seldom be fathomed with any degree of accuracy. [Ref: Ujjagar Singh v.

State of Punjab reported as (2007) 13 SCC 90].

64. In the present case, the Trial Court has disbelieved the allegations of

cruelty against the appellant. If the Trial Court would have held otherwise, it

would have explained the motivation behind the commission of the offence.

Be that as it may, we are not called upon to review those findings, inasmuch

as, no appeal has been preferred against the acquittal of the appellant as well

as his mother and sister from the charge under section 498A IPC. The motive

is locked deep inside the mind of the accused. However, as other

circumstances unerringly point towards the guilt of the appellant, merely

because the prosecution has not been able to establish the motive behind the

commission of the offence, it would not dislodge the case of the prosecution

in its entirety.

65. The Hon'ble Supreme Court in State of W.B. v. Mir Mohammad

Omar reported as (2000) 8 SCC 382, has succinctly laid down the principle

of presumption of a fact from certain other proved facts, as follows:

" 33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case."

66. Furthermore, there is another principle of law which must be kept in

mind in a case based on circumstantial evidence. The principle is that when

an incriminating circumstance is put to the accused and the said accused

either offers no explanation or offers an explanation which is found to be

untrue, then the same becomes an additional link in the chain of

circumstances to make it complete. [Ref: Trimukh Maroti Kirkan (supra)]

67. It has been proved that the appellant was present at the matrimonial

house during the time of the incident. The time of death has been opined to

be 4:55 P.M. The first call was made by the appellant to PW-9 around 6:30

P.M., i.e. more than one and half-hours belatedly, fabricating a story that the

deceased committed suicide. Thereafter, defence was taken that the deceased

died due to ill health. Subsequent thereto, it was stated by the appellant that

he was not present at the matrimonial house during the time of the incident.

No steps were taken by the appellant to inform either the police authorities or

the neighbours about the incident. There was no effective cross-examination

by the appellant with respect to the incriminating circumstances against him.

All the varying defences taken by the appellant at different points in time

have been disbelieved. Moreover, no rational explanation has been

forthcoming from the appellant as to what transpired on the fateful day

within the confines of the matrimonial house.

68. Section 106 of the Evidence Act postulates that where any fact is

within the exclusive knowledge of a person, the burden of proving that fact

is on him. The appellant has failed to discharge the burden on him under

section 106 of the Evidence Act vis-à-vis the sequence of events leading to

the death of the deceased. Moreover, the appellant has tendered false

explanations with respect to his whereabouts at the time of the commission

of the offence and the circumstances leading to the death of the deceased;

thus providing an additional link in the chain of circumstances to make it

complete.

69. The evidence on record suggests the involvement of more than one

person in the commission of the crime. The absence of charges under section

302 IPC against anyone else but the appellant negates the examination of this

question in appeal.

70. Therefore, in our considered view, the Ld. Trial Court after close and

judicious scrutiny of the circumstantial evidence on record has correctly

arrived at the conclusion with regard to the guilt of the appellant. There

appears to be no circumstance that warrants interference by this Court with

the decision of the Ld. Trial Court.

71. Consequently, the conviction of the appellant as recorded in the

impugned judgment as well as the sentence awarded to him by way of the

order on sentence, are upheld.

72. The present appeal is accordingly dismissed, with no order as to costs.

73. Copy of the judgment be supplied to the appellant through the

Superintendent, Tihar Jail and also be sent for updation of the records.

SIDDHARTH MRIDUL (JUDGE)

NAJMI WAZIRI (JUDGE) DECEMBER 06, 2017 dn/ap/ns