CRL.A./665/2009 of MEHBOOB AHMED Vs STATE

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on:07.01.2013Judgment pronounced on:01.02.2013

CRL.A. 665/2009

MEHBOOB AHMED

..... AppellantThrough:Mr. S.K.Sethi, Advocate.

versus

STATE..... RespondentThrough:Mr. Sanjay Lao, APP.CORAM:HON'BLE MR. JUSTICE SANJIV KHANNAHON'BLE MR. JUSTICE SIDDHARTH MRIDUL

J U M N T

SIDDHARTH MRIDUL, J.

1.By the impugned judgment, dated 18.05.2009, the appellant Mehboob

Ahmed has been convicted under Section 302 of the Indian Penal Code,1860 (IPC, for short), for the murder of Rumana Praveen on 30.12.2005 intheir residence, at H.No. F-277 Gali No.14 Khajuri Khas, Delhi. Theappellant has been sentenced to life imprisonment and to pay fine ofRs.10,000/-, in default of which, he is to undergo simple imprisonment, forsix months.

2.The prosecution case is that on 30.12.2005, at around 10 a.m., theappellant, his step daughter- the deceased and Rubina Praveen (PW1), werepresent in his residence. Nasim Fatima (PW10), the mother of the deceasedwas at her shop, right outside their home. Noise of cries emanating from theinner room of the house, where the deceased and the appellant were sleeping,was heard by both PW1 and PW10. They rushed to the room and saw theappellant with knife in his hand, smeared in blood. The deceased was lyingon the floor with injuries on her neck and face and blood oozing profusely.PW10 tried to apprehend the appellant but he overpowered her, threw theknife and ran away. They raised alarm and Shehzad Ahmed (PW2), husbandof PW1, came there. They took the deceased to Guru Teg Bahadur Hospitalin TSR where she was declared to have been brought dead.

INCRIMINATING CIRCUMSTANCES THAT STAND ESTABLISHEDAGAINST THE APPELLANT

Homicidal Death and Medical Testimony

3.It is undisputed that the deceased died homicidal death in themorning of 30.12.2005. Dr. Arvind Kumar (PW19), who conducted the postmortem, has opined the cause of death to be hemorrhagic shock due to antemortem injuries to neck and facial vessels caused by sharp edged weapon.

4.The Post Mortem Report (Ex.PW19/A), conducted by Dr. ArvindKumar, Senior Demonstrator, GTB Hospital, Shahdara, Delhi has recorded19 injuries of which Injuries ‘vi’ to ‘ix’ were sufficient to cause death in theordinary course of nature.

5.The injuries are as below:-

i.Incise wound of size 4cm X 0.3cm X bone deep placed

horizontally present over the right side of forehead on the hair

line.

ii.Incise wound of size 4.5cm X 0.3cm X bone deep with making

cut marks on the underlying bone placed vertically present overthe left temporal region 3 cm above and posterior to the upperlobe of left ear.the left temporal region 3 cm above and posterior to the upperlobe of left ear.

iii.Superficial incise wound of size 5cm X 0.2cm X 0.2 cm makinga flap of skin placed vertically in front of right ear.a flap of skin placed vertically in front of right ear.

iv.Incise wound of size 3.5cm X 0.5cm X 0.5cm present right side

of cheek bone placed obliquely starting 4cm medial to injuryNo.3 and extending upto right ala of nose.No.3 and extending upto right ala of nose.

v.Incise wound of size 2cm X 3cm full thickness present overright ala of nose.right ala of nose.

vi.Incise wound of size 28cm X 0.9cm X 0.2cm starting from right

angle of mandible going obliquely upward involving both the

angle of mouth and left ear upper lobe cutting the vessel andmuscle of the face of left side.muscle of the face of left side.

vii.Incise wound of size 6cm X 0.2cm X bone deep placed

obliquely over the right mandible.

viii.Three incise wounds merging into each other making one

wound of size 105cm X 1cm present right side of the neck,

cutting the underlying neck muscles, right carotid vessels and

trachea. The wound is 2.4 cm below the lower border of right

year and 7cm above the calvical bone and 3cm right to themidline.midline.

ix.Incise wound of size 4cm X 0.2cm X 0.5cm placed horizontallyjust below the chin.just below the chin.

x.Superficial incise wound of size 7cm X 0.2cm X 0.2cm present

in front of neck below the thyroid cartilage.

xi.Superficial incise wound of size 5.5cm X 0.1cm X 0.2CMpresent 2cm below the injury No.10.present 2cm below the injury No.10.

xii.Incise wound of size 7cm X 0.2cm X 0.8cm present over the

palmer aspect of finger involving all the fingers except thethumb placed obliquely.thumb placed obliquely.

xiii.Incise wound of size 1cm X 0.3cm X 0.8cm deep and 2cm

width present over the palmer aspect of thump, middle finger

and ring finger of right hand.

xiv.Superficial incise would of size 13cm X 0.3cm X 0.1cm present

over lateral aspect of left leg starting 4cm above the left heelgoing upward, obliquely up to the lower 1.3 of the shin.going upward, obliquely up to the lower 1.3 of the shin.

xv.Two superficial incise wound ‘7’shaped present on the lateralaspet of middle of left thigh.The horizontal arma is 9cm X0.1cm X 0.1cm and other arm is 14cm X 0.1cm X 0.1cm. Theaspet of middle of left thigh.The horizontal arma is 9cm X0.1cm X 0.1cm and other arm is 14cm X 0.1cm X 0.1cm. The

pointed end is 23cm below the itiac crest, 17cm above the leftknee.knee.

xvi.Over shape stab wound 0.7cm to 0.9cm in length and 0.4cm X

0.5cm in breadth, 1cm to 1.5cm in depth present over the loweraspect of right chest and lateral aspect of right chest. Four innumber, present in an area of 11cm X 9cm. The upper wound is0.8cm below and lateral to right nipple. The margin of all thewound is abraded.aspect of right chest and lateral aspect of right chest. Four innumber, present in an area of 11cm X 9cm. The upper wound is0.8cm below and lateral to right nipple. The margin of all thewound is abraded.

xvii. Oval shape stab wound 0.8cm X 0.3cm present right side ofabdomen, 4cm right and lower to the umbilicus.abdomen, 4cm right and lower to the umbilicus.

xviii. Oval shape stab wound, three in number, 0.7 cm X 0.8cm in

length, 0.3cm in width, 1cm to 1.5cm deep present lateral aspectof left forearm, 2cm below the lateral epicondyle of elbow join,margin are abraded.of left forearm, 2cm below the lateral epicondyle of elbow join,margin are abraded.

xix.Oval shape stab wound, four in number, 0.8cm to 1cm long,

0.4cm broad, 1cm to 1.9cm deep placed in line obliquely, themaximum distance between two is 14cm, the lower one is 17cmabove the knee and upper most one is 27cm above the knee.Margins are abraded, present over the right thigh in front.maximum distance between two is 14cm, the lower one is 17cmabove the knee and upper most one is 27cm above the knee.Margins are abraded, present over the right thigh in front.

6.After examination of the knife (weapon of offence) PW19 has opinedthat Injury ‘i' to ‘xv’ are possible with the knife i.e. the weapon given forexamination.that Injury ‘i' to ‘xv’ are possible with the knife i.e. the weapon given forexamination.

Witnesses to the incident

7.The next question and issue is whether the appellant is responsible andhad caused the said injuries.The prosecution in this regard relies uponstatements of PW1 Rubina Praveen and PW10 Nasim Fatima. They claimthat they were eye witnesses to the incident. PW1 is the real sister of the

deceased and was residing in the house of the appellant on the date of theincident. PW1 and PW10, the mother of the deceased, who were present inthe house, have proved the presence of the appellant in the house at the timeof incident. The offence having been committed in dwelling house, theoccupants of the same are natural witnesses to the incident and their presenceis thus most probable in the instant case.

8.They have both affirmed that they saw the appellant with knife(murder weapon), smeared in blood, standing next to the deceased and on thearrival of PW1 and PW10 in the room of the incident, he dropped the knifeand ran away. Their testimony remains unshaken through the test of crossexamination and is affirmed in all its material aspects.

9.It was submitted out through the statement of PW10 that there existcertain contradictions in her statement so as to establish her actual presenceat the spot. Perusal of the rukka (Ex.PW10/A) read with the testimony of thewitness shows that she states in the rukka that she was at her shop at the timewhen she heard cries coming from her house whereas in her testimony shehas deposed that she was offering prayers. There is no material contradictionin both these statements. One does not make the other improbable. She could

be offering prayers in her shop. Either way her presence does not becomedoubtful due to this minute variance in her testimony.

10.It should also be pointed out that PW10 was cross examined on28.08.2006, nearly 8 months after the incident. It is highly probable that shedid not have perfect recollection of her exact spot at the time of incident. Thehuman mind has imperfect memory and such like minor deviations is natural

and not sufficient to make her presence doubtful. If we see these witnessesthrough microscope, it is true that the above mentioned contradictions would

be visible but they have proved and established the case of the prosecution.

The so called contradictions are not material and do not dent the prosecutioncase.

11.In recent case reported as Kathi Bharat Vajsur and Anr. v. State of

Gujarat, AIR 2012 SC 2163, the Supreme Court examined the law on

material contradictions in the testimony of witness and observed:

“19. This Court, in the case of Sunil Kumar Sambhudayal Gupta(Dr.) v. State of Maharashtra, (2010) 13 SCC 657, summarizedthe law on material contradictions in evidence thus:

“Material contradictions

30. While appreciating the evidence, the court has to take intoconsideration whether the contradictions/omissions had beenof such magnitude that they may materially affect the trial.Minorcontradictions,inconsistencies,embellishmentsor

improvements on trivial matters without effecting the core ofthe prosecution case should not be made ground to reject theevidence in its entirety. The trial court, after going through theentire evidence, must form an opinion about the credibility ofthe witnesses and the appellate court in normal course wouldnot be justified in reviewing the same again without justifiablereasons. (Vide State v. Saravanan)

31. Where the omission(s) amount to contradiction, creatinga serious doubt about the truthfulness of witness and theother witness also makes material improvements before thecourt in order to make the evidence acceptable, it cannot besafe to rely upon such evidence. (Vide State of Rajasthan v.Rajendra Singh)

32. The discrepancies in the evidence of eyewitnesses, iffound to be not minor in nature, may be ground fordisbelievinganddiscreditingtheirevidence.Insuchcircumstances, witnesses may not inspire confidence and iftheir evidence is found to be in conflict and contradiction withother evidence or with the statement already recorded, in sucha case it cannot be held that the prosecution proved its casebeyond reasonable doubt. (Vide MahendraPratap Singh v.State of U.P.)

33. In case, the complainant in the FIR or the witness in hisstatement Under Section 161 Code of Criminal Procedure, hasnot disclosed certain facts but meets the prosecution case firsttime before the court, such version lacks credence and is liableto be discarded. (Vide State v. Sait)

34. In State of Rajasthan v. Kalki, while dealing with thisissue, this Court observed as under: (SCC p. 754, para 8)

“8. ... In the depositions of witnesses there are alwaysnormal discrepancies however honest and truthful they maybe. These discrepancies are due to normal errors ofobservation, normal errors of memory due to lapse of time,due to mental disposition such as shock and horror at thetime of the occurrence, and the like. Material discrepanciesare those which are not normal, and not expected of anormal person.”

35. The courts have to label the category to which adiscrepancy belongs. While normal discrepancies do notcorrode the credibility of party's case, material discrepanciesdo so. (See Syed Ibrahim v. State of A.P.6 and Arumugam v.State)

36. In Bihari Nath Goswami v. Shiv Kumar Singh this Courtexamined the issue and held: (SCC p. 192, para 9)

“9. Exaggerations per se do not render the evidence brittle.But it can be one of the factors to test the credibility of theprosecution version, when the entire evidence is put in acrucible for being tested on the touchstone of credibility.”

37. While deciding such case, the court has to apply theaforesaid tests. Mere marginal variations in the statementscannot be dubbed as improvements as the same may beelaborations of the statement made by the witness earlier. Theomissionswhichamounttocontradictionsinmaterialparticulars i.e. go to the root of the case/materially affect thetrial or core of the prosecution case, render the testimony ofthe witness liable to be discredited.””

12.Furthermore, no specific suggestion has been put to PW10 to explainany such contradiction. If there is an evident contradiction in the testimony

of PW10 to establish her exact presence at the spot, then the same should

have been put to her to enable her to explain the same. Whether she was atthe shop or at home offering prayer, would have been explained if it weresuggested to her. No such suggestion was put to her during her cross-examination.

13.In the case reported as State of UP v. Nahar Singh, AIR 1998 SC1328, the Supreme Court has observed:

CRL.A.665/2009

“13. It may be noted here that part of the statement of PW-1 wasnot cross-examined by the accused. In the absence of cross-examination on the explanation of delay, the evidence PW-1remained unchallenged and ought to have been believed by theHigh Court. Section 138 of the Evidence Act confers valuableright of cross-examining the witness tendered in evidence by theopposite party. The scope of that provision is enlarged bySection 146 of the Evidence Act by allowing witness to bequestioned:

(1) to test his veracity.

(2) to discover who he is and what is his position in life, or

(3) to shake his credit, by injuring his character, although theanswer to such questions might tend directly or indirectly tocriminate him or might expose or tend directly or indirectly toexpose him to penalty or forfeiture.

14. The oft quoted observation of Lord Herschell, L.C. inBrowne v. Dunn, (1893) 6. The Reports 67 clearly elucidates theprinciple underlying those provisions. It reads thus:

"I cannot help saying, that it seems to me to be absolutelyessential to the proper conduct of cause, where it is intendedto suggest that witness is not speaking the truth on aparticular point, to direct his attention to the fact by somequestions put in cross-examination showing that imputation isintended to be made, and not to take his evidence and pass itby as matter altogether unchallenged, and then, when it isimpossible for him to explain, as perhaps he might have beenable to do if such questions had been put to him, thecircumstances which, it is suggested, indicate that the story hetells ought not to be believed, to argue that he is witnessunworthy of credit. My Lords, I have always understood thatif you intend to impeach witness, you are bound, whilst he isin the box, to give an opportunity of making any explanationwhich is open to him; and, as it seems to me, that is not only arule of professional practice in the conduct of case, but it isessential to fair play and fair dealing with witnesses."”

14.The evidence of PW1 and PW10 which is reliable and worthy ofcredence has thus, justifiably been relied upon by the court.

Registration of FIR and Investigation

15.PW10 is the complainant in the case and the FIR was registered at herinstance. Insp. B.S.Khushwah (PW17), the IO in this case, has deposed thaton 30.12.2005 at around 10:45am, information was received vide DD No. 6-A that girl had been stabbed. He reached the spot with SI Rakesh Kumar(PW14) and recorded statement of PW10 (Ex.PW10/A). Meanwhile,information was received regarding admission of the deceased in GTBHospital. He rushed to the hospital, collected her MLC and prepared rukkavide endorsement Ex.PW 5/A. The FIR was registered at about 1:30 p.m.Thus we do not perceive that the registration of the FIR is belated or delayed.

16.The crime team and photographer were summoned at the spot. Thecrime team inspected the spot and took photographs. Vide memo Ex.PW 9/Athe IO seized blood stained churri, sample of dari and bedsheet, bloodsamples, earth samples and earth control and prepared site plan of the spot atthe instance of PW10.

17.The body of the deceased was identified by Suhail Adnan (PW3),husband of the deceased and Modh Khalid (PW4), brother of the deceasedvide Ex.PW3/A and Ex.PW4/A respectively.

Disclosure and Recovery

18.The appellant was arrested on 31.12.2005 vide arrest memo Ex PW-14/B by Insp. B.S. Khushwah, PW17, in front of Raja Dhaba, Loni. Hispersonal search was conducted vide memo Ex.PW14/C and disclosurestatement Ex.PW14/D was recorded wherein he disclosed that he could getrecovered the blood stained kurta pajama and kababseak behind toilet on

platform No.2 of Shahdara Railway Station.

19.It strongly emerges from the evidence on record that there are twoweapons of offence. The knife that was seized from the crime scene itselfand the kababseak that was got recovered by the appellant. The post mortemreport records 19 external injuries on the person of the deceased. PW19, Dr.Arvind has examined the knife and has opined that Injuries i-xv are possibleby the weapon of offence i.e. the knife. After examination of the iron rod(seak), on subsequent opinion, PW19 has opined that Injuries ‘xvi’ to ‘xix’are possible by the weapon of offence i.e the iron rod (seak).

20.Both PW1 and PW10 have deposed that they saw the appellant in theroom, holding knife in his hand and on seeing them enter the room, hedropped the knife and ran away.

21.It is highly unnatural that the appellant would take one weapon ofoffence i.e. the iron rod (seak) with him in the process of fleeing the crimescene and at the same time drop the other weapon.

22.Another material irregularity in this regard is the testimony of PW10

who has deposed the following in her cross examination:

“At this state, parcel duly sealed with Court seal is opened anda plastic jar is taken out. It is containing dari piece and bedsheetpiece. Those pieces are Ex.P2/1 to 2 and Ex.P3 which are thesame, which were cut and seized by the police from my house.Another parcel duly sealed with court seal is opened and aplastic jar containing dagger is taken out. Dagger Ex.P1 is thesame, which was seized by the police from my house. I had seenthis dagger in the hands of accused, when I entered the innerroom of my house, as detailed above. At the time of incident,accused was wearing kurta and pyjama. I can identify the same,if shown to me. Another parcel duly sealed with court seal is-opened and kurtapyjamaare taken out. Kurta Ex.P5 and PyjamaEx.P6 are the same, which the accused was wearing at that time.

XXXXXXXXXX by Sh. Arun Sharma, Advocate for theaccused.

I cannot say whether my supplementary statements wererecorded by the police or not. I had put my thumb impressionsover all my statements. (At this juncture, defence counsel wantscopies of those supplementary statements and Ld. Prosecutorreplied that only one statement of the witness bears her thumbimpression). I had not stated before the police in my statement

anything about seizure of kurta-pyjama.Kurta Ex.P5 andpyjama Ex.P6 were seized by the police from our house.It iscorrect that clothes of the accused were kept on pegs in thehouse. I am not aware whether police had recorded the factumof seizure of kurta-pyjama in my statement or not. Kurta Ex.P5and pyjama Ex.P6 were lying in the room where blood waslying.Police reached our house 9.30-10 a.m.”

23.The witness correctly identifies the clothes of the appellant worn at the

time of the incident. These same clothes i.e. blood stained kurta and pajama

were gotten recovered by the appellant through his disclosure statement. Thefact that the witness states that the same kurta pajama Ex.P5 and Ex.P6 waslying in the room where the blood was lying makes the recovery notablydoubtful and gives reason to believe that they may have been planted. Weignore the disclosure and consequent alleged recovery.

24.The Supreme Court on the aspect of re discovery of discovered fact, in

case reported as Sukhvinder Singh v. State of Punjab, (1994) 5 SCC 152

has observed:

“17. The first piece of circumstantial evidence relied uponagainst them revolves around the recovery of the dead body ofVarun Kumar from the house of Sukhvinder Singh and hisparents on the disclosure statement made by Sukhvinder Singh,Sukhdev Pal and Puran Chand Ex. PW10/B, Ex. PW10/C andEx. PW10/D respectively. We are surprised at the manner inwhichthedisclosurestatementswererecordedbytheinvestigating agency and relied upon by the Designated Court.That Section 27 of the Evidence Act is an exception to thegeneral rule that statement made before the police is notadmissible in evidence is not in doubt. However, vide Section

27 of the Evidence Act, only so much of the statement of anaccused is admissible in evidence as distinctly leads to thediscovery of fact. Therefore, once the fact has been discovered.Section 27 of the Evidence Act cannot again be made use of to're-discover' the discovered fact. It would be total misuse-evenabuse-of the provisions of Section 27 of the Evidence Act.”

25.The testimony of PW10 discloses that the kurta pyjama was seized by

the police from her house itself. The statement of PW10 shows that she istruthful and did not merely go by the police version and was not tutored.Also, close scrutiny of the evidence on record makes the possibility of the

appellant running away with the iron rod (seak), at time when he is seendroppingtheknife,verydoubtful.Thedualeffectofboththesecircumstances make the alleged recovery very suspicious and it cannot berelied upon. Thus we exclude that disclosure and recoveries from theincriminating material which can be relied upon, but as noticed this does noteffect the final finding.

Motive and Conduct of the appellant

26.It was alleged that the appellant had sexual contact forcibly with thedeceased, prior to her marriage with PW3. PW10 has stated that suchinformation was communicated to her by the deceased on previousoccasion after which she confronted the appellant. However, the appellant

threatened to divorce her and therefore out of fear for herself and disgrace to

family name she did not disclose this fact to anyone. This fact has beenaffirmed by PW3 in his cross examination.

27.PW1 has deposed that the deceased had confided in her regarding thesame. PW1 has further stated that the appellant had tried to sexually exploither as well about which she had informed her husband and on his advice shehad stopped visiting the room of the appellant thereafter.

Absconder

28.It is also established that the appellant was absconding from his houseafter the incident till he was arrested on 31.12.2005 at 8:45p.m. as per hisarrest memo Ex.PW14/B.

Examination of the appellant

29.The appellant has denied all allegations against him and stated that hehas been falsely implicated in this case. He also alleges that PW9 was having

intimate relations with his wife and therefore has deposed against him.

30.The appellant has taken the plea of alibi to prove his innocence and inhis defence, he has examined his brother Aziz Ahmed DW1.

31.Aziz Ahmed DW1 has deposed that the appellant left his house at 7amon the date of incident. The defence witness has only stated about the

CRL.A.665/2009Page 17 of 21

appellant’s presence at the spot till about 7/7:15a.m. The incident occurredsomewhere between 9:30 - 10a.m. No other person has been examined toestablish the plea of alibi. It is noteworthy to mention that on suggestionput to PW10 that the appellant left his home at 8am, the same has beendenied. suggestion was also put to PW10 that the appellant offered tea to

certain Hazi Shamsuddin at around 8a.m. and then left for work. This hasalso been denied by PW10. Further, the appellant has not examined any HaziShamsuddin to prove the same.

32.Section 106 of the Indian Evidence Act casts the burden to prove afact especially within the knowledge of any person upon such person. Thus,in view of the evidence put forth, the appellant has not been able to establishhis plea of alibi to the satisfaction of this Court.

33.It is also to be seen that the explanation of false implication isextremely vague and unconvincing. The appellant claims that his wife waspressurizing him to transfer his property in her name.The testimony ofDW1 does not even mention the name of PW9 or any other circumstance toshow that PW10 was having any intimate relations with PW9. Hence, thisallegation has gone unsubstantiated.

34.The appellant has explained another reason for PW10 to falselyimplicate him. He alleges that PW10 used to criminally intimidate him andpressurized him to forcibly occupy the room that was the property of hisbrother. She also used to fight with the appellant to transfer the said room inher name and since he did not accede to the same, she has falsely implicatedhim in this case. This explanation is quite absurd. Firstly, if PW10 wantedthe property as desperately as the appellant claims, it would make moresense for her to threaten the appellant’s brother and falsely implicate him.Secondly, and more importantly it is quite farfetched that she would let offthe real culprit behind her daughter’s murder in order to falsely implicate theappellant, who is none other than her own husband.

35.There is therefore, no evidence to suggest the possibility of the same

and to believe this to be the reason for falsely implicating the appellant.

Injuries on appellant

36.PW20 has deposed that the appellant was brought to GTB Hospital on

31.12.2005 for medical examination and the following injuries were noted

on his person:

i) Old multiple superficial cut incised marks present at anterior aspect ofneck just at the level of thyroid cartridge. Injuries were about 24 hoursold.neck just at the level of thyroid cartridge. Injuries were about 24 hoursold.

37.The appellant has explained that the same were caused by razorwhile shaving. Again it worth mentioning that despite opportunity, PW20was not cross examined and therefore, no suggestion was put to him as towhether the said injury could have been caused by razor to ascertain thetruthfulness of the appellant’s explanation.

38.Since the appellant was arrested the very next and day and taken formedical examination, the doctor’s opinion about the injuries on his neck andthe time when they were sustained assume importance as furtherincriminating circumstance against the appellant and he has not been able toexplain the same. The said injuries may have been sustained by the appellantin the course of struggle between the appellant and the deceased at the timeof the incident. However, the doctor who had examined these injuries has notopined on the cause of such injuries and at the same time the appellant hasnot been able to prove his explanation to the same.

39.De hors the fact that we disbelieve the recovery effected at instance ofthe appellant, we are of the considered view that the evidence adduced by theprosecution at the trial is sufficient to establish the guilt of the appellantbefore us beyond all reasonable doubt. We say so in view of the oculartestimony of PW1, which is confirmed and corroborated by PW10 in all its

material aspects. Further, motive for the murder proved by the combinedtestimony of PW1, PW10 and PW3 is highly incriminating evidenceestablished against the appellant. The appellant has neither been able toprove his plea of alibi nor sufficiently explained the injuries sustained byhim soon after the incident of murder.

40.The appeal is accordingly dismissed. Conviction and sentenceawarded are upheld and maintained.

SIDDHARTH MRIDUL, J.SANJIV KHANNA, J.

FEBRUARY 01, 2013mk