Delhi High Court
Sohan Singh vs State on 2 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 05.01.2018
% Judgment delivered on: 02.07.2018
+ CRL. A. 743/2014
SOHAN SINGH ..... Petitioner
Through: Ms. Rakhi Dubey, Advocate
versus
STATE ..... Respondent
Through: Ms. Aashaa Tiwari, APP for State
with SI Om Prakash, PS- DBG Road
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE P. S. TEJI
JUDGMENT
VIPIN SANGHI, J.
1. The present Criminal Appeal has been preferred by the Appellant
under Section 374(2) of Code of Criminal Procedure against the judgment
and order on sentence passed by Ms. Savita Rao, Learned ASJ, Tis Hazari
Courts, Delhi; dated 18.02.2014, in SC No. 100/2013 arising out of FIR
No.211/2010, under section 302 IPC registered at PS D.B.G. Road . The
appellant stands convicted and sentenced to imprisonment for life under
Section 302 IPC with fine of Rs.50,000/-, in default of which he is sentenced
to undergo SI for six months.
2. The case of the prosecution is that on 14.09.2010, one lady Smt
Shanti Devi PW-4 came to PP Shidipura and informed about an injured lady
lying in a room on the third floor of her house. On receipt of this
information, HC Sukhpal PW-10 alongwith SI Satbir Singh and Ct. Jaswant
PW-12 went with PW-4 to her house. One woman (hereinafter also referred
to as „deceased‟) was found lying dead on the floor, unclad and soaked in
blood, in the said room. The place was inspected, and rukka Ex. PW-6/A
was prepared on the statement of PW-4 (Ex PW-4/A) in which she stated
that the said room was rented out to the accused and that she had last seen
the accused Sohan Singh and the deceased come together to the said house
at 12:30 PM that day.
3. The scene of crime was inspected and a few seizures were made.
Crime team was called and it inspected the place minutely and took
photographs of the dead body.
4. Site plan without scale was prepared vide Ex. PW-16/A. During
investigation, a call was received on the mobile phone found in the said
room, and it was found that the deceased was one named Sunita, and that
she had left with the accused around 12 PM that day. The deceased‟s
husband, Arun Verma, PW-2 reached the spot, identified the dead body as
being that of his wife and also gave information regarding sister of the
accused. Thereafter, FIR No. 211 Ex. PW-3/A was registered on the same
day i.e 14.09.2010 and the dead body was sent for examination.
5. The exhibits from the deceased- two metal churi, vaginal swab,
viscera, sample of blood, vaginal smear and clothes of the deceased, were
collected from the mortuary and seized vide Ex. PW-12/A by the IO on
15.09.2010.
6. The post mortem of the deceased was conducted on 15.09.2010 at
2.30 PM vide Ex. PW-7/A and the doctor had opined that the cause of death
in this case was shock and hemorrhage as a result of cut throat injury which
is sufficient to cause death individually in ordinary course of nature.
Following injuries were noted on the body and all were opined to be ante
mortem in nature.
"1 Cut throat wound of length 26 cm × gaping 10cm. at the
midline, present 7 cm below chin, 4 cm above supra sternal at
anterior midline of neck, 8.5 cm below and back to the left
mastoid process, 17cm entended left to midline at left side of
neck. The right end of wound 7cm below and forward to right
mastoid process on right side of neck. The margin of wound is
clean cut. A ste tag is found at right side of neck present on
right angle of wound. Inside the wound, the subcutaneous
tissue, muscles of left, right and anterior part of neck, both
superficial and deep blood vessels, both carotid arteries,
trachea, esophagus were cut with clean cut margins associated
with hematoma. There were two cut marks of length 4cm and
2cm parallel to each other with 2cm gaping present over the
anterior side of upper cervical vertebra.
2. A incised wound of size 6×2cm muscle deep horizontally
present over right upper part of neck, 3cm below and right to
mentum with acute margins.
3. A linear cut of length 3cm present over mentum obliquely
with tailing towards right.
4. Linear cut 3cm×0.2cm present over left shoulder, lateral
aspect.
5. Linear cut of size 2cm present over left upper chest
region, anterior aspect with tailing towards right.
6. Linear cut of size 5cm × 0.2cm obliquely present over
suprasternal notes with tailing towards left.
7. Incised wound of length 6.5cm gaping, muscle deep,
spindle shape with clear cut margins present over right elbow
joing lateral aspect obliquely present.
8. Incised wound of size 2.5cm, gaping 0.5cm present over
right First webspace, muscle deep. (Defensive wound)
9. Linear cut 3cm present over right palm, thenar eminesce.
10. Linear cut 4cm obliquely, present over left forearm in
lower 1/3, ventral aspect.
11. Incised wound 2.5× 0.5cm bone deep present over
backside of let thumb dorsal at base.
12. Incised wound 2.5×0.5cm muscle deep present over Ist
web space on the left side.
13. Incised wound 5×0.3cm muscle dep present over left
thenar eminence.
14. Incised wound 2.5×0.5cm muscle deep present over
ventral aspect of left thumb; distal phalynx ventral aspect.
15. Incised wound 1.5 ×0.2cm present over left distal finger,
ventral aspect.
16. Incised wound 1.5×0.2cm present over ventral aspect,
middle finger of left hand and one linear cut 6.5 ×0.2cm
present over right leg upper 1/3, 8cm below right knee "
The probable time of death was stated to be „about one day‟. This
report was duly proved by PW7 Dr. Kulbhushan, who had conducted the
post mortem.
7. The sister of the accused was interrogated, the CDRs and cell site IDs
with location of accused‟s phone were traced and it showed the location of
accused‟s phone at Shamli, U.P. The CDRs are now Ex. PW-1/C and the
cell site IDs are Ex. PW-1/DA. The accused was apprehended on 24.09.2010
vide arrest memo Ex. PW10/A, from Gali No. 6, Gopalpur, Near Wazirabad
on information by the sister of the accused; his disclosure statement was
recorded in which he disclosed that after the incident he went and hid at a
Dharamshala in Shamli. He thereafter led the police party to the said
Dharamshala and the entry register of the Dharamshala was seized vide Ex.
PW-10/B.
8. On completion of the investigation, the Police filed the charge sheet
and charge was framed against the appellant under section 302 IPC on
02.04.11. The statement of the accused was recorded on 22.07.2013 when
the incriminating circumstances were put to him. He claimed innocence and
chose to lead defence evidence where he examined himself under section
315 CrPC as DW-1
9. The prosecution examined a total of 16 witnesses, the main witnesses
being PW-2, husband of the deceased and PW-4 the complainant.
10. PW-2 in his testimony stated that on 14.09.2010 at about 10:30 or 11
AM he was present at his house. His wife was upset since the morning
because of repeated calls on her mobile phone by someone. On enquiry, she
told him that it was one Sohan who was her colleague and that he was not
well. At about 11.15 AM, she went to meet Sohan at his house in Shidipura.
PW-2 waited for her to return home till 5-5.30 PM and during this period he
made several calls on her number, but there was no reply. The accused‟s
phone was also switched off. Then he called accused‟s sister whose number
was fed in his daughter‟s mobile phone. The sister of the accused had no
idea about accused‟s whereabouts. They continuously called on deceased‟s
phone and at about 5:30-5:45 PM, someone answered and asked him to
reach PP Shidipura. On reaching there, police told him that his wife had
been murdered by her colleague Sohan Singh. On reaching the house of the
accused, he saw a dead body which had been covered and identified it as
that of his wife. He knew the accused being colleague of his wife. On
24.09.2010 he was again called by the police at PP Shidipura, where he
identified accused Sohan Singh.
11. In her testimony, PW-4 has stated that the accused was her tenant in
one room on the third floor of her house and he used to pay Rs. 1500 per
month as rent. He had taken the room on rent about 5-6 months prior to the
date of the incident. Accused was living alone in the said room though he
had told her that he was married and his family members were living
somewhere else. On 14.09.2010, it was a Tuesday at about 12-12.15 noon,
accused along with one lady namely Sunita came to his room. The said
Sunita had also come on few occasions to the house of the accused. She told
him that accused was related to her as her „Devar‟. After half an hour of
arrival of accused along with Sunita, she heard noise of falling of some
heavy article from the room of the accused. At about 2.30 PM, she had gone
to the third floor to fetch water. She noticed the fan in the room of accused
was switched on. On seeing this, she knocked the door of the accused but no
one responded, so she returned back to her room. She became suspicious
and made inquiry from her daughter about the presence of the accused in his
room. Her daughter told her that the accused had left the room since a long
time. She again went to the room of the accused in order to switch off the
fan. She again knocked the door, but no one responded. Then she noticed
that the door was not latched/bolted from outside. She pushed the door, it
was slightly opened, and; she saw the legs of Sunita having blood stains. She
immediately closed the door and went to Police Post Siddhipura and
informed the police. The police inquired from her whether the said woman
was dead or alive, to which she told them that it seemed to her that she was
dead. She was accompanied by the police back to that room. Her statement
was recorded by the police. She never issued any rent receipts to the
accused. The trial court, as aforesaid, has convicted the accused/ appellant
by the impugned judgment.
12. Ms. Rakhi Dubey, Ld. Counsel for the appellant submits that the case
is one of circumstantial evidence where much importance has been placed
on the testimony of PW4, who stated that the deceased was last seen alive
with the accused. It is submitted that the accused was not present at the
scene of crime at the time when the incident took place, as is stated by him
in his testimony. It is submitted that the accused has been erroneously
convicted, influenced by his conduct of his absconding after the occurrence.
It is further submitted that the prosecution has failed to attribute any motive
to the appellant for the alleged murder. Lastly, it is submitted that the
investigation done in this case was a shoddy one, and no medical
examination of the dead body was undertaken to determine whether the
deceased was subjected to sexual assault.
13. Ld. Counsel for the appellant submits that allegedly PW4 saw the
deceased last in the company of the accused, but that by itself is not
sufficient to find the appellant guilty. Ms. Dubey has drawn our attention to
the testimony of PW4 in court which we have already taken note of
hereinabove. Ld. Counsel submits that the testimony of PW4 has been
improved in the court. She submits there is a contradiction in the testimony
of PW4 on the point whether she went to fetch water at 2:30 pm, or at 3:00
pm; also whether she went once, or twice on the said floor before
discovering the body of deceased. Ld. Counsel submits that having regard to
the above said inconsistencies, the testimony of PW-4 should be
disregarded.
14. Ld. Counsel further submits that in order to hold the accused guilty,
the prosecution has to raise suspicion grave enough to conclude that the
crime could have been committed only by the accused, and by no one else.
Ld. Counsel submits that the said rented room of the accused was accessible
from the neighborhood and the possibility of an intruder coming from the
adjoining property cannot be ruled out. On this aspect, Ld. Counsel points
towards the cross examination of husband of the deceased- PW2, on behalf
of the accused dated 19.05.11, wherein he states that the gate was lying open
when he reached the spot around 5:30 p.m. She also points out the cross
examination of Inspector Satyaveer (PW6) on behalf of the accused, where
he stated that there were houses adjacent to the house of complainant on
both sides, and also on the back side. There was one more room, besides the
room of the accused. The said room was lying locked and was in the
possession of complainant.
15. Ld. Counsel refers to the cross examination of PW10- Head
Constable Sukhpal on behalf of the accused dated 02.05.12, wherein he
stated that anyone can reach the adjacent houses after jumping over the
boundary wall of the open space outside the room where the dead body was
recovered.
16. Ld. Counsel has attempted to construct a timeline of the day of the
incident i.e., 14.09.10, narrating the proceedings as per the testimony of
PW4. She submits that as per PW4, the accused came to the room along
with the deceased around 12:00-12:15 p.m. About 30 minutes thereafter,
PW4 heard a loud noise from the third floor. This should be around 12:45-
1:15 p.m. At about 2:30 p.m., PW4 went upstairs to fetch water and she
thereafter discovered the dead body of the deceased around 2:40 p.m. Ld.
Counsel has compared this with the post mortem report of the deceased,
which is recorded at 2:30 p.m on the next day, i.e. 15.09.2010, wherein the
time since death is recorded as „about one day‟ . She submits that the post
mortem was conducted on 15.09.2010 at 2:30 PM vide Ex PW-7/A, and the
„probable time of death‟ is recorded as „about one day‟ in the same. Ld.
counsel submits that this puts the time of death at around 2:30 p.m. on
14.09.2010; and that the accused had already left the place of incident by
that time.
17. Ld. Counsel points to the statement of the accused recorded under
Section 315 Cr.P.C., wherein he claimed innocence and stated that he was
working in Hotel Prince Colony, Paharganj in the year 2010. He knew
deceased Sunita who was working with him in the aforesaid hotel. Her
husband used to remain ill and he was not earning. The entire family,
consisting of her husband and three children was dependant only on her
income. The deceased was in the business of prostitution for earning extra
income, and he used to arrange customers and also used to provide his
rented room for the aforesaid purpose. On the day of the incident, she came
to his room. Sometime thereafter, a customer came in the room from the
adjoining house. Thereafter the deceased asked him to go from there and,
accordingly, he left the room. When after sometime he came to the room, he
saw that the deceased was lying unconscious, in an injured condition, and
blood was oozing out from her injuries. He became scared and ran away.
18. Ld. Counsel submits that the accused had left the room shortly after
his arrival with the deceased. Whereas, the murder of the deceased took
place at a later point of time, i.e. in the absence of the accused; which is
corroborated by the post mortem report of the deceased Ex. PW-7/A.
19. Ms. Dubey concluded her arguments by submitting that suspicion
cannot take the place of proof and hence, the accused should be given the
benefit of the doubt. Reliance is placed on the decision in Anjan Kumar
Sarma & Ors. V State of Assam, JT 2017 (6) SC 498.
20. Per contra, Ms. Aasha Tiwari, Ld. APP for State submits that the
prosecution has been able to complete the chain of circumstances in order to
prove the case of the prosecution. It is submitted that the deceased was last
seen in the company of the accused, after which she was never seen alive. It
is further submitted that there is sufficient evidence to establish the guilt of
the appellant.
21. Ms. Aashaa Tiwari submits that the burden of proving what
transpired inside the room of the accused, after it has been established that
he went to the room with the deceased, is on the accused under section 106
of the Evidence Act, 1872, since that fact was especially within the
knowledge of the accused. Since the accused was last seen coming in the
house with the deceased by PW-4, the onus of proving what happened inside
the room of the accused lies on the accused, as he was the one who had
exclusive knowledge of the proceedings. Ms. Tiwari further submits that the
accused has failed to give any satisfactory explanation to discharge his
obligation. Nor has he led any evidence to show that he was not present at
the scene of incident at the time when the crime is alleged to have taken
place.
22. Ld. Counsel points to the statement made by the accused in Court
under Section 313 Cr.P.C., and his testimony under Section 315 Cr.P.C. She
submits that they are contradictory; and he has failed to provide sufficient
explanation with regard to the proceedings of the fateful day. She also points
out that the accused even failed to give a description about the appearance of
the alleged customer of the deceased in his cross examination by the Ld.
APP.
23. Ms. Tiwari further submits that the accused claimed he was in the
business of arranging customer for the deceased, yet he could not tell the
house number from where the said customer came into his room. He merely
states that it was an adjacent house. He merely states that the customer was
aged about 40 years and he was clean shaved. Ms. Tiwari submits that the
accused has, thus, failed to discharge the burden of proving the facts alleged
by him, and he has been rightly convicted. Ld. Counsel places reliance on
Trimukh Maroti Kirkan Versus State Of Maharashtra, (2006)10 Supreme
Court Cases 681; State of Punjab Versus Karnail Singh, (2003) 11
Supreme Court Cases 271; State of West Bengal Versus Mir Mohammad
Omar and others, AIR 2000 Supreme Court 2988; State of Rajasthan
Versus Thakur Singh, (2014) 12 SCC 211; and Balbir Singh Versus State,
168 (2010) Delhi Law Times 406 (DB), to press the aforesaid submissions.
24. Ld. Counsel further submits that the conduct of the accused,
subsequent to the incident is pertinent. The accused, admittedly absconded
in fear. She points out the statement of PW16, IO Jeewan Lal, who states
that on the basis of the CDR of the mobile phone of the accused, it was
found out that the accused was present at Shamli. Thereafter a raiding party
went there and a police team was sent to his native village, but the accused
was not found anywhere. On 24.09.2010, sister of the accused informed that
accused would come to her house at about 3 PM. On receipt of this
information, a raiding team was constituted by him comprising of HC
Sukhpal and Incharge of Police Post Shidhipura and accused was
apprehended from Gali No. 6, Gopal Pur, near Waziarabad on the basis of
aforesaid information. Accused was brought to Police Station and after
interrogation he was arrested vide arrest memo Ex. PW-10/P1. During PC
remand, accused led the Police to Aggarwal Dharamshala in Shamli, where
he was hiding under the name of Vijay. The records of the register of the
said Dharamshala (Ex. PW10/P-I) from 18.09.2010 to 23.09.2010, which
were duly proved by PW11- the care taker of the Dharamshala, corroborate
the fact that the accused had changed his name in an attempt to hide his
identity. She submits that this conduct of going into hiding, of the appellant,
suggests that it was indeed him who had murdered the deceased, and his
failure to prove otherwise, the trial court rightly held him guilty. Ld. Counsel
places reliance on Arabindra Mukherjee V. State of West Bengal, 2012 Cri.
L. J. 1207, in support of her aforesaid submission.
25. We have considered the submissions advanced by learned counsels
and perused the evidence brought on record thoroughly. We have also
perused the impugned judgment and scrutinized the reasoning adopted by
the learned ASJ while convicting the appellant.
26. PW-4 has corroborated the contents of the rukka Ex. PW-4/A, in
material particulars in her testimony. She has consistently stated that the
accused came with the deceased around 12.30 PM; after about 30 minutes
she heard a noise from the room of the accused; she went upstairs to fetch
water in the afternoon, and noticed that the fan of the room of the accused
was on; she noticed that the door of the accused was not latched; she went to
switch the fan off, and when she opened the door of the room, she saw the
dead body of the deceased lying there soaked in blood and a blood stained
knife was lying next to her dead body; she straightaway rushed to the police
post and informed the police of the incident. PW-4 was cross examined by
Ld. Amicus Curiae on this point at length, but nothing material came out to
discredit her testimony. There are hardly any improvements in her
statements.
27. Pertinently, Ex. PW-4/A is a statement made by PW-4 to the police,
and not before a Court, and she was not expected to disclose incidents that
had occurred before she discovered the dead body. Her omission in
informing the police that she had gone to the third floor once prior to
discovering the dead body, in our view, is of no material consequence.
Similar is our view regarding the so called contradiction in time of PW-4
going to the third floor to fetch water being 2:30 PM, or 3 PM. Pertinently,
the rukka was recorded on 14.09.2010, whereas her testimony was recorded
in Court on 19.05.2011; human memory is fallible and a witness cannot be
expected to recollect the incident in verbatim after the passage of several
months. Therefore, we are of the view that the minor variations in the
testimony of PW-4, whose testimony we otherwise find to be cogent and
consistent, do not shake her credibility. We are thus of the view that these so
called contradictions are inconsequential and of no consequence. Thus we
are of the opinion that PW-4 was a credible witness, whose testimony is
trustworthy.
28. We do not find merit in the submission that the accused was not
present at the spot when the alleged incident took place, for the reason that
the post mortem report Ex. PW-7/A gives the probable time of death as
"about one day". It cannot be concluded that the deceased had died exactly
at 2:30 pm on 14.09.2010. Presence of the accused at the place when the
incident is stated to have taken place is established by the testimony of PW-
4, who is the witness to the last seen evidence. Pertinently, even the
appellant/ accused states in his statement recorded under Section 315
Cr.P.C. that he was with the deceased in the room. He claims to have left
while the deceased was still alive- a fact which he has failed to probabilize.
Nothing has come on record to convince us of his leaving the spot. Even the
appellant has not led any evidence in support of his aforesaid claim. He has
not set up an alibi. Pertinently, in his cross examination, PW-2 Arun Verma,
specifically states that the staircase that led to the room of the accused went
through the inside of the building of the house PW-4. In case, someone
entered through the door of the house, the same would have been noted by
PW-4, but PW-4 in her testimony nowhere mentions that any other person
went up the stairs at the material time. PW-4 also states that around 2:30
p.m. that day, she went up to the floor where the incident had happened to
fetch water, and noticed that the fan of the room of the accused was on.
29. There is a material contradiction in the statement made by the accused
under Section 313 Cr.P.C., when compared with his statement recorded
under Section 315 Cr.P.C. In his statement recorded under Section 313
Cr.P.C. he stated that the deceased came to his house with a customer, and
asked him to go outside for two hours. However in his testimony recorded
under Section 315 Cr.P.C., he states that the deceased came to his room,
thereafter a customer came from the adjoining house, and the deceased
asked him to leave. In view of the differing statements made by the accused,
his testimony fails to inspire the confidence of this Court, and we therefore
agree with the submission of Ms. Tiwari that the appellant has failed to
discharge his burden under section 106 of Evidence Act.
30. Reliance placed by Ld. Counsel for the appellant on Anjan Kumar
Sarma (supra) is misplaced because in that case there was a substantial time
lag between the time when the deceased and the accused were last seen
together, and the time of death of the deceased as determined upon post
mortem. The deceased was last seen at a bungalow with the accused on
27.12.1992 at 9 PM, and her body was recovered at a railway track on
29.12.1992 at about 1:50 PM i.e. more than 40 hours after she was last seen
with the accused; the time of death according to her post mortem report was
also 15 hours after she was seen with the accused. In the present case,
deceased was last seen by PW-4 with the accused at 12:30 PM going into
the room of the deceased on 14.09.2010; and thereafter her dead body was
found lying in the same room on the same day around 2:30 PM by PW-4 i.e.
2 hours later. Also, the dead body in Anjan Kumar (supra) was recovered
from the railway track, which is a common place accessible to general
public. However, in the present case, the dead body was recovered from the
room of the accused, which was in the exclusive possession of the accused.
31. There is merit in the submission of Ld. APP, that the burden of
proving what transpired inside the room of the accused- after it has been
established that the deceased was last seen with him going into his room, is
on the accused under section 106 Evidence Act. The accused has not helped
his cause by failing to give cogent description of the alleged customer of the
deceased. The same probablises the fact that no other person ever came to
the room of the accused, and the appellant has concocted a story as an after-
thought. Pertinently, the accused never disclosed about the presence of
anyone in his room at the time of alleged offence to the investigating officer.
32. In Arabindra Mukherjee V. State of West Bengal, 2012 Crl L. J.
1203, the Supreme Court, while dismissing the convicts appeal observed:
"6. None of these contentions impress us. PW 1 and PW 11
both have deposed that the accused used to come to the house
of the deceased even subsequent to the passing of the decree of
divorce. Thus, the visits of the accused to the house of the
deceased was a common phenomenon. On the fateful day, as
per these witnesses, he had come to the house of the deceased
and requested her to come out with him for seeing a movie in
the cinema hall. The deceased had accompanied the accused
never to return to her home. Upon search, her body was found
on the railway track next day.
7. The statements of these two witnesses read along with the
medical evidence on record fully support the case of the
prosecution. Once the appellant was last seen with the
deceased, the onus is upon him to show that either he was not
involved in the occurrence at all or that he had left the
deceased at her home or at any other reasonable place. To
rebut the evidence of last seen and its consequences in law,
the onus was upon the accused to lead evidence in order to
prove his innocence. It was also for the accused to establish
that he was falsely implicated. The stand taken by the accused
in his statement under Section 313 of the Code of Criminal
Procedure, was a complete denial of involvement and a result
of false charges by the appellants. Once the prosecution had
established its case, it was expected from the appellant to
prove his defence of false implication. The conduct of the
accused-appellant also is suspicious in the sense that after the
occurrence he was absconding and with difficulty the police
could trace and arrest him." (emphasis supplied )
33. In Mir Mohammad Omar (supra), the State of West Bengal, as well
as the convicted persons filed appeals against the decision of the Calcutta
High Court. The State challenged the acquittal of the accused on the charge
of murder, and the latter challenged their conviction under Section 364 read
with Section 34IPC. The Supreme Court allowed the appeal filed by the
State and dismissed the appeals filed by the convicted persons. It relied on
the presumption which arose against the accused on account of the last seen
evidence which was not rebutted by the accused. The Supreme Court
observed as under:
"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.
34. When it is proved to the satisfaction of the Court that
Mahesh was abducted by the accused and they took him out of
that area, the accused alone knew what happened to him until
he was with them. If he was found murdered within a short
time after the abduction the permitted reasoning process
would enable the Court to draw the presumption that the
accused have murdered him. Such inference can be disrupted
if the accused would tell the Court what else happened to
Mahesh at least until he was in their custody.
x x x x x x x x x
37. The section is not intended to relieve the prosecution of its
burden to prove the guilt of the accused beyond reasonable
doubt. But the section would apply to cases where the
prosecution has succeeded in proving facts from which a
reasonable inference can be drawn regarding the existence of
certain other facts, unless the accused by virtue of his special
knowledge regarding such facts, failed to offer any
explanation which might drive the court to draw a different
inference." (emphasis supplied)
34. In Thakur Singh (supra), the accused Thakur Singh took his wife and
daughter inside a room and bolted it from within, keeping the room locked
throughout the day. He did not open the same even on being persuaded by
his relatives. Later in the evening, the „kelu‟ was removed from above the
house, and it was then discovered that the wife had died. He was accused of
murdering his wife. Supreme Court, while allowing the State‟s appeal and
restoring the judgment of the Trial Judge, invoked Section 106 of the
Evidence Act, 1872. It observed:
"22. The law, therefore, is quite well settled that the burden of
proving the guilt of an accused is on the prosecution, but there
may be certain facts pertaining to a crime that can be known
only to the accused, or are virtually impossible for the
prosecution to prove. These facts need to be explained by the
accused and if he does not do so, then it is a strong
circumstance pointing to his guilt based on those facts."
35. In Karnail Singh (supra), the deceased was last seen by the brother of
the deceased, being dragged by the accused who were armed with weapons.
Thereafter, the headless body of the deceased was recovered lying in a field
near the Dera of accused Karnail Singh. After searching for the head of the
deceased, the same was found lying in the tubewell at the Dera. The
Supreme Court, while allowing the State‟s appeal and restoring the
conviction by the Trial Court observed:
"7. ... It is to be noted that there was no dispute by the accused
regarding the presence of the dead body and the severed head
in the field and near the tubewell of accused Karnail Singh.
Though the prosecution has to lead evidence to substantiate its
accusations, if facts within the special knowledge of the
accused are not satisfactorily explained it is a factor against
the accused. No explanation was given by the accused during
examination under Section 313 of the Code except making
bold denial. Though this factor by itself cannot be sufficient to
fasten the guilt of the accused, while considering the totality
of the circumstances this is certainly a relevant factor. The
evidence of PWs 1 and 2 is clearly cogent and without even
properly analyzing their evidence the High Court came to the
conclusion that their presence was doubtful.
x x x x x x x x x
12. Exaggerated devotion to the rule of benefit of doubt must
not nurture fanciful doubts or lingering suspicion and thereby
destroy social defence. Justice cannot be made sterile on the
plea that it is better to let hundred guilty escape than punish an
innocent. Letting guilty escape is not doing justice according to
law. (See Gurbachan Singh v. Satpal Singh [(1990) 1 SCC 445
: 1990 SCC (Cri) 151 : AIR 1990 SC 209] .) The prosecution is
not required to meet any and every hypothesis put forward by
the accused. (See State of U.P. v. Ashok Kumar
Srivastava [(1992) 2 SCC 86 : 1992 SCC (Cri) 241 : AIR 1992
SC 840] .) A reasonable doubt is not an imaginary, trivial or
merely possible doubt, but a fair doubt based upon reason and
common sense. It must grow out of the evidence in the case. If
a case is proved perfectly, it is argued that it is artificial; if a
case has some flaws inevitable because human beings are
prone to err, it is argued that it is too imperfect. One wonders
whether in the meticulous hypersensitivity to eliminate a rare
innocent from being punished, many guilty persons must be
allowed to escape. Proof beyond reasonable doubt is a
guideline, not a fetish. [See Inder Singh v. State (Delhi Admn.
[(1978) 4 SCC 161 : 1978 SCC (Cri) 564 : AIR 1978 SC 1091]
).] Vague hunches cannot take place of judicial evaluation.
"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."
(Per Viscount Simon in Stirland v. Director of Public
Prosecution [1944 AC 315 : (1944) 2 All ER 13 (HL)] quoted
in State of U.P. v. Anil Singh [1988 Supp SCC 686 : 1989 SCC
(Cri) 48 : AIR 1988 SC 1998] , SCC p. 692, para 17.) Doubts
would be called reasonable if they are free from a zest for
abstract speculation. Law cannot afford any favourite other
than the truth. (See: Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 :
(1974) 1 SCR 489] , State of U.P. v. Krishna Gopal [(1988) 4
SCC 302 : 1988 SCC (Cri) 928 : AIR 1988 SC 2154]
and Gangadhar Behera v. State of Orissa [(2002) 8 SCC 381 :
2003 SCC (Cri) 32 : (2002) 7 Supreme 276] .)"(emphasis
supplied)
36. We may also observe that the conduct of the accused of running away
and remaining in hiding under a false identity, is also a circumstance which
goes against the appellant. The plea of the accused that he was scared as he
was involved in the deceased‟s business of prostitution does not impress us,
since there is not even an iota of evidence- apart from the testimony of the
accused, on the point that the deceased was a prostitute. Accused has also
not led any evidence in support of this claim. Pertinently, in his cross
examination the accused admitted to having an extramarital relationship
with the deceased. We, therefore, hold this circumstance to be against the
appellant.
37. Pertinently, the deceased was killed by slitting open her neck, and as
per PW-4 there was a pool of blood in the room when she first saw the dead
body. It is only natural that in the act, blood splattered in and around the
deceased. When the police reached the scene of crime, they had made
seizures of blood stained clothes lying in the said room vide Ex. PW-6/B.
All of these exhibits, including clothes like vest, shirt, nikkar etc. found in
the room of the accused, were sent to the FSL for examination. According to
the FSL Report Ex. PW-16/E, blood was detected on all of the clothes. As
per Ex. PW-16/F, the blood detected on the vest, shirt, boxer, tshirt and
towels were found to be of „AB‟ group; matching the one found on the
clothes of the deceased, as well as on the weapon of offence. It would be
absurd to hold that someone else would come into the room, put on clothes,
kill the deceased, then change clothes there itself before leaving the scene of
crime within such a short span of time, and that too inconspicuously.
38. With regard to the submission that the investigation done on the
aspect of sexual assault was insufficient, we may observe that PW-16 was
cross examined on the said aspect and he stated that he had made enquiries
from some other people, including the staff of the hotel where the accused
and the deceased worked together, but nothing material came out of the
same; and the same was recorded by him in the case diary. Pertinently, even
the 2 exhibits containing vaginal smear of the deceased were sent to the FSL
for examination and the FSL report Ex. PW-X-1 states that semen could not
be detected on the exhibit.
39. Keeping in view the above discussion, we find no merit in the present
appeal and dismiss the same. We uphold the judgment and order on
sentence rendered by the Ld. ASJ.
(VIPIN SANGHI)
JUDGE
(P. S. TEJI)
JUDGE
JULY 02, 2018
