CRL.A./740/2014 of PRAMOD KUMAR JAISWAL Vs STATE

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved On: 23.05.2017Judgment Pronounced On: 01.09.2017

CRL.A. 740/2014

PRAMOD KUMAR JAISWAL

Versus

...AppellantThrough: Mr. Ajay Verma, Advocate

STATE (GOVT. OF NCT OF DELHI)

... RespondentThrough: Ms. Rajni Gupta, APP forState with Inspector Kusum Lata, P.S.Dwarka, South.

CORAM:HON’BLE MR. JUSTICE SIDDHARTH MRIDULHON’BLE MS. JUSTICE MUKTA GUPTA

J U M N T

SIDDHARTH MRIDUL, J.

1.The present appeal instituted under the provisions of section 374(2) ofthe Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘CrPC’)assails the judgment dated 19.04.2014 and the order on sentence dated22.04.2014, rendered by the Ld. Additional Sessions Judge, Dwarka Courts,Delhi. By way of the impugned judgment dated 19.04.2014 and the order on

sentence dated 22.04.2014, the appellant has been convicted for thecommission of offences punishable under the provision of section 302, ofthe Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’); andsentenced to undergo rigorous imprisonment for life, alongwith the paymentof fine of Rs.10,000/-. In default of the payment of fine, the appellant hasbeen sentenced to undergo simple imprisonment for period of threemonths.

2.The fulcrum of the instant case is that, on 10.05.2011, the appellantcaused the death of his wife Geeta alias Anita alias Guddi alias Sunita(hereinafter referred to as the ‘deceased victim’), by stabbing her with aknife, in their rented roomsituated at the House No.66, Harijan Basti,Krishna Kunj, Near Primary School, Village Bagdola, Sector-8, Dwarka(hereinafter referred to alternatively as the ‘rented room/crime spot/HouseNo.66’); and thereafter, fled from the crime spot after locking the deceasedvictim inside their rented room.

3.It is the case of the prosecution that on 13.05.2011, pursuant to DDNo. 13A, the police officials (PW-3 and PW-4) reached the crime spot tofind the decomposed dead body of the deceased victim lying in their rentedroom. PW-1, the care-taker and tenant of the said House No.66, informedthe police that the deceased victim and her husband/ appellant, were residing

in the rented room, where the decomposed dead body of the deceased victimwas found. PW-1 further informed the police that on 10.05.2011, at around10 P.M., when he met the appellant, to collect the rent for the room; thelatter told him that he would pay the rent on 15.05.2011 and would alsovacate the rented room on the same day. PW-1 further told the police that therented room was found locked on 11.05.2011 and 12.05.2011. On13.05.2011, PW-1 and other tenants found foul smell emanating from therented room and consequently, the lock of the rented room was broken openby PW-1 and other tenants, and the decomposed dead body of the deceasedvictim was found lying therein.

4.The crime team was called to the spot and investigation wasconducted. Upon the statement of PW-1, FIR No.119/2014 dated 13.05.2011was got registered. Articles were lifted from the crime spot and seized byPW-21 [Ex.PW-1/B, Ex.PW-1/C, Ex.PW-1/D, Ex.PW-1/E, Ex.PW-1/F,Ex.PW-1/G, Ex.PW-1/H] and were sent for scientific examination. Chanceprints were lifted by the crime team from the crime spot and were also sentfor scientific examination.

5.The dead body of the deceased victim was sent for post-mortem on19.05.2011, and thereafter, the dead body of the deceased victim was handed

over to PW-15 (appellant’s cousin) and other relatives of the deceasedvictim.

6.During the investigation of the case, PW-21 met PW-5, at whoseinstance the appellant was apprehended [arrest memo exhibited as Ex.PW-8/C] at Bihar. The personal search of the appellant was conducted videpersonal search memo [Ex.PW-21/C] and the police recovered key fromthe possession of the appellant [seized vide seizure memo Ex.PW-12/B].

7.The disclosure statement of the appellant was recorded [Ex.PW- 21/E]and the appellant was brought to Delhi on 18.05.2011. On the same day, atthe instance of the appellant, one broken knife [Ex.PW-12/A] was recoveredfrom the DDA park behind DTC bus depot, Sec-8, Bagdola, Delhi. The saidknife was also sent for scientific examination. Further, on the pointing of theappellant, the scene of crime was got verified vide memo Ex.PW-12/C.

8.The finger prints of the appellant were taken and sent to the FingerPrints Bureau, Kamla Market, Delhi, to compare the same with the chanceprints lifted by the crime team from the crime spot.

9.Learned counsel appearing on behalf of the appellant would urgefirstly that, the prosecution has failed to establish that the appellant wasresiding with the deceased victim at the said rented room. It would also be

asseverated that the Ld. Trial Court erred in holding that the appellant waslast seen together with the deceased victim on the date of the incident.

In this behalf, the learned counsel appearing on behalf of the appellantwould draw the attention of this Court to the testimonies of PW-1 and PW-11 (tenants at House No.66).

10.With regard to the testimony of PW-1, it would be asseverated that thesame is unreliable, inasmuch as, PW-1 failed to demonstrate that he was thelandlord and that he had rented out the said room to the appellant and thedeceased victim. It would then be asserted that neither was the landlord ofthe said plot examined by the prosecution; and nor was his authorisation toPW-1 to collect rent on his behalf, brought on record.

11.In relation to the testimony of PW-11, it would be argued that she didnot remember the date on which she saw the appellant in the said room. Itwould further be argued that the testimony of PW-11 is untrustworthy,inasmuch as, PW-11 initially testified that the appellant was occupying theroom for one month before the incident, but later deposed that the appellantwas occupying the room 15 days prior to the date of the incident.

12.Secondly, it would be submitted on behalf of the appellant that, therecovery of the key to the house where the body of the deceased victim wasfound; and the recovery of the weapon of the offence, would amount to an

inadmissible recovery of evidence, since no independent or public witnesswas joined by the police whilst conducting the personal search of theappellant and whilst making the alleged recovery of the knife.

13.Learned counsel on behalf of the appellant would then asseverate thatthere is no evidence on record to establish that he was the owner of the SIMCard of the phone number [REDACTED].

14.It would also be contended on behalf of the appellant that he has beenfalsely implicated in the instant case by the prosecution in connivance withhis brother on account of property dispute between the appellant and hisbrother. In this behalf, it would also be asserted that the appellant in fact, didnot know the deceased victim.

15.Lastly, the learned counsel appearing on behalf of the appellant wouldurge that the prosecution has failed to establish any motive of the appellantto cause death of the deceased victim.

16.Per contra, Ld. Additional Public Prosecutor appearing on behalf ofthe State, whilst supporting the impugned judgement in its entirety, wouldurge that the prosecution case has been proved beyond reasonable doubt; andthat the same has been corroborated by way of medical and scientificevidence on record.

17.It would then be submitted that the recovery of evidence would not betainted on account of non- joinder of public or independent witness at thetime of such recovery.

18.It would also be asseverated on behalf of the State that the weapon ofcrime was recovered at the instance of the appellant and was sent forscientific examination. In this behalf, it would be asserted that the bloodfound on the recovered knife [Ex.PW-12/A] matched with the blood groupfound on the clothes of the deceased victim.

19.We have heard the learned counsels appearing on behalf of the partiesand perused the entire case record.

20.The present case is one based on circumstantial evidence and at theoutset, it would be profitable to refer to the legal position with regard toproving prosecution case based on circumstantial evidence. InSharadBirdichand Sharda v. State of Maharashtra, reported as 1984 AIR SC1622, the Hon’ble Supreme Court whilst placing reliance on the five goldenprinciples enunciated in its decision in Hanumant (supra), elaborated thenature, character and essential proof required in criminal cases which rest oncircumstantial evidence. The relevant paragraphs of the report have beenextracted hereinbelow:

“152. Before discussing the cases relied upon by the High Court wewould like to cite few decisions on the nature, character and essentialproof required in criminal case which rests on circumstantialevidence alone. The most fundamental and basic decision of this Courtis Hanumant v. State of Madhya Pradesh [AIR 1952 SC 343 : 1952SCR 1091 : 1953 Cri LJ 129] . This case has been uniformly followedand applied by this Court in large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of UttarPradesh [(1969)3SCC198:1970SCC(Cri)55]and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972SC 656] . It may be useful to extract what Mahajan, J. has laid downin Hanumant case [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ129] :

“It is well to remember that in cases where the evidence isof circumstantial nature, the circumstances from which theconclusion of guilt is to be drawn should in the first instancebe fully established, and all the facts so established should beconsistent only with the hypothesis of the guilt of the accused.Again, the circumstances should be of conclusive nature andtendency and they should be such as to exclude everyhypothesis but the one proposed to be proved. In other words,there must be chain of evidence so far complete as not toleave any reasonable ground for conclusion consistent withthe innocence of the accused and it must be such as to showthat within all human probability the act must have been done

by the accused.”

153. close analysis of this decision would show that the followingconditions must be fulfilled before case against an accused can besaid to be fully established:

(1) the circumstances from which the conclusion ofguilt is to be drawn should be fully established.

It may be noted here that this Court indicated that thecircumstances concerned “must or should” and not “may be”established. There is not only grammatical but legal distinctionbetween “may be proved” and “must be or should be proved” aswas held by this Court in Shivaji Sahabrao Bobade v. State ofMaharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl

LJ 1783] where the observations were made: [SCC para 19, p.807: SCC (Cri) p. 1047]

“Certainly,itisaprimaryprinciplethattheaccused must be and not merely may be guilty before acourt can convict and the mental distance between ‘maybe’ and ‘must be’ is long and divides vague conjecturesfrom sure conclusions.”

(2) the facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is tosay, they should not be explainable on any otherhypothesis except that the accused is guilty,

(3) the circumstances should be of conclusive natureand tendency,

(4) they should exclude every possible hypothesisexcept the one to be proved, and

(5) there must be chain of evidence so complete asnot to leave any reasonable ground for the conclusionconsistent with the innocence of the accused and mustshow that in all human probability the act must havebeen done by the accused.

154.These five golden principles, if we may say so, constitute thepanchsheel of the proof of case based on circumstantial evidence.

155. It may be interesting to note that as regards the mode of proof in acriminal case depending on circumstantial evidence, in the absence ofa corpus delicti, the statement of law as to proof of the same was laiddownbyGresson,J.(andconcurredby3moreJudges)in King v. Horry [1952 NZLR 111] thus:

“Before he can be convicted, the fact of death should beproved by such circumstances as render the commission ofthe crime morally certain and leave no ground for reasonabledoubt: the circumstantial evidence should be so cogent andcompelling as to convince jury that upon no rationalhypothesis other than murder can the facts be accounted for.”156. Lord Goddard slightly modified the expression “morally certain”by “such circumstances as render the commission of the crimecertain”.

157. This indicates the cardinal principle of criminal jurisprudence thata case can be said to be proved only when there is certain and explicitevidenceandnopersoncanbeconvictedonpuremoralconviction. Horry case [1952 NZLR 111] was approved by this Courtin Anant Chintaman Lagu v. State of Bombay [AIR 1960 SC 500 :(1960) 2 SCR 460 : 1960 Cri LJ 682] . Lagu case [AIR 1960 SC 500 :(1960) 2 SCR 460 : 1960 Cri LJ 682] as also the principles enunciatedby this Court in Hanumant case [AIR 1952 SC 343 : 1952 SCR 1091 :1953 Cri LJ 129] have been uniformly and consistently followed in alllater decisions of this Court without any single exception. To quote afew cases — Tufail case [(1969) 3 SCC 198 : 1970 SCC (Cri) 55], Ramgopalcase [(1972)4SCC625:AIR1972SC656], Chandrakant Nyalchand Seth v. State of Bombay [ Criminal AppealNo 120 of 1957, decided on February 19, 1958] , DharambirSingh v. State of Punjab [ Criminal Appeal No 98 of 1958, decided onNovember 4, 1958 printed on green papers in bound volumes] . Thereare number of other cases where although Hanumant case [AIR1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] has not beenexpressly noticed but the same principles have been expounded andreiterated, as in Naseem Ahmed v. Delhi Administration [(1974) 3 SCC668, 670 : 1974 SCC (Cri) 198, 200 : (1974) 2 SCR 694, 696] , MohanLal Pangasa v. State of U.P. [(1974) 4 SCC 607, 609 : 1974 SCC (Cri)643, 645 : AIR 1974 SC 1144, 1146] , Shankarlal GyarasilalDixit v. State of Maharashtra [(1981) 2 SCC 35, 39 : 1981 SCC (Cri)315, 318-19 : (1981) 2 SCR 384, 390 : 1981 Cri LJ 325] and M.G.Agarwal v. State of Maharashtra [AIR 1963 SC 200 : (1963) 2 SCR405, 419 : (1963) 1 Cri LJ 235] — five-Judge Bench decision.”

(Emphasis supplied.)

21.In view of the dictum of the Hon’ble Supreme Court in Sharad

Birdhichand Sharda (supra), the important circumstances which this Courthas to take into consideration for the adjudication of the present appeal areas follows:

(a)Whether the appellant had the opportunity or occasion tocommit the crime?commit the crime?

(b)Whether the deceased victim died of the injuries caused to herby the weapon of offence?by the weapon of offence?

(c)Whether the weapon of the offence was recovered from hispossession or at his instance?possession or at his instance?

(d)Whether the appellant had motive to kill his wife, the deceased?22.A perusal of the testimony of PW-1 would reveal that the appellantcame to the House No.66, on 05.04.2011, for taking room on rent. Theappellant did not furnish any identification to PW-1 but gave him his mobilenumber ([REDACTED]) on piece of paper. On 05.05.2011, PW-1 had goneto collect rent from the appellant on instructions of Hoshiyar Singh (theowner of House No.66); and was told by the appellant that he would pay therent on 10.05.2011. On 10.05.2011 when PW-1 went to the room of theappellant at 10 P.M., he was told by the appellant that the latter would paythe rent on 15.05.2011 and would also vacate the room by that day. It hasalso been testified by PW-1 that the room of the appellant remained closedon the 11.05.2011 and 12.05.2011. On 12.05.2011, other tenants of HouseNo.66, informed PW-1 of foul smell coming from the room of theappellant. On 13.05.2011, when the foul smell became unbearable, all thetenants and PW-1, including the CRPF officials assembled outside the rentedroom of the appellant and the lock of the door of the rented room was brokenopen. PW-1 testified that he saw the dead body of the appellant’s wife lyingon the cot and that thereafter he informed the police.

Whilst the police conducted the search in the room, one photo albumwas recovered amongst other articles. It has been testified by the PW-1 thatthe said photo album was shown to him and to other tenants; and that all ofthem identified the appellant as the husband of the deceased, after seeing thealbum. The said photo album was also identified by PW-1 before the Ld.Trial Court and same is Ex.P-1. PW-1 also identified 14 loose passport sizedand identity card sized photographs which were seized by the police fromthe room of the appellant. PW-1 also identified 01 gown (maxi) as the onethat was recovered by the police [Ex.P-7].

23.A perusal of testimony of PW-11 would reveal that she was alsoresiding in rented room in house no. 66, Harijan Basti, Baghdola, Delhi.PW-11 has deposed that the appellant was residing in room on the firstfloor of the House No.66 with his wife, namely, Geeta. It has also beentestified by PW-11 that the appellant has two sons. She also testified that theaccused was residing in room at house No. 66 for 15 days before the dateof the incident. PW-11 further testified that, on 10.05.2011, at around 11.30

P.M., her son knocked on the door of the appellant’s room and the appellantscolded him and asked him to go away.

24.Although PW-15 turned hostile during cross-examination, it would berelevant to note that PW-15 deposed in his examination-in-chief that theappellant is the son of his paternal uncle.PW-15 has further deposed that theappellant, alongwith his wife, Geeta (deceased victim), came to Delhi andhad stayed with him. He also testified that the appellant has two sons withthe deceased victim and two sons from his other wife, Munni.

25.The report of the fingerprint bureau [Ex.PW-10/A] concludes that thechance prints taken from the empty half sized bottle of whiskey, recoveredfrom the rented room, which were sent for scientific examination [Ex.PW-9/A] matched the fingerprint of the appellant.

26.Further, the key for the lock on the door of the rented room, where thebody of the deceased victim was found; was recovered from the possessionof the appellant at the time of his arrest in Bihar. [Seizure Memo]27.The contention raised on behalf of the appellant that the prosecutionhas failed to bring on record any proof of rental agreement made by theappellant qua the rented room at House No.66; and the proof of rentalagreement of PW-11 and qua her residency in House No.66, is untenableand thus, cannot be accepted. In this behalf, the Ld. Trial Court has observed

in the impugned judgement that, it is common practice in Delhi to rent outrooms without entering into any written contract and furthermore, withouteven issuing receipt qua the rent.

28.The mere fact that there was no written agreement or rent receipt doesnot ipso facto prove that there does not exist any contractual/ rentalrelationship between the parties, inasmuch as, there is no statutoryrequirement that for creation of tenancy, any written agreement is pre-requisite. Even oral tenancy can be created. [Ref: Decision of coordinatebench of this Court in Dinesh Kumar v. State of NCT of Delhi, in Crl.Appeal No. 1234/2010].

29.In light of the aforesaid legal position, and in view of, (i) thetestimony of PW-1 and PW-11; (ii) report of the fingerprint bureau, Ex.PW-10/A; (iii) the recovery of key of the lock affixed on the door of the rentedroom, from the appellant; and (iv) the recovery of photo album with picturesof the appellant and the deceased victim, from the rented room, theinescapable conclusion one arrives at, is that the appellant rented roomat House No.66, to live with the deceased victim at the relevant time.

30.In his statement recorded under the provision of section 313 of theCrPC, the appellant has stated that the deceased victim was not his wife.

However this position is evidently negatived by the testimony PW-1, PW-11and PW-15.

31.In this behalf, it is trite to observe that in case of circumstantialevidence, as the instant case, when the accused offers an explanation andthat explanation is found to be untrue, then the same offers an additional linkin the chain of circumstances to complete the chain. [Ref: Swapan Patra v.

State of West Bengal, reported as (1999) 9 SCC 242; State of Maharashtrav. Suresh, reported as (2000) 1 SCC 471; Kuldeep Singh v. State ofRajasthan] Furthermore, in Hanumant (supra), the Hon’ble Supreme Courthas observed as follows:

“159. It will be seen that this Court while taking into account the absence ofexplanation or false explanation did hold that it will amount to be anadditional link to complete the chain but these observations must be read inthe light of what this Court said earlier viz. before false explanation canbe used as additional link, the following essential conditions must besatisfied:explanation or false explanation did hold that it will amount to be anadditional link to complete the chain but these observations must be read inthe light of what this Court said earlier viz. before false explanation canbe used as additional link, the following essential conditions must besatisfied:

(1) various links in the chain of evidence led by the prosecution havebeen satisfactorily proved,been satisfactorily proved,

(2) the said circumstance points to the guilt of the accused withreasonable definiteness, andreasonable definiteness, and

(3) the circumstance is in proximity to the time and situation.

160. If these conditions are fulfilled only then court can use falseexplanation or false defence as an additional link to lend an assurance tothe court and not otherwise.”

32.The appellant has also contended that he has been falsely implicatedin the present case at the behest of his own brother, with whom he is statedto have property dispute. However, no evidence has been brought onrecord by the appellant in support of this defence. Furthermore, perusal ofthe testimony of PW-15 (Paternal Cousin of the Appellant) would alsoreveal that, no questions with regard to any property dispute between theappellant and his brother were put to him by the appellant, to elicit the truthbehind the appellant’s defence.

33.Therefore, in the instant case, the statement of the appellant that, thedeceased victim was not his wife and that he has been falsely implicated atthe behest of his brother, would serve as an additional link in the chain ofcircumstances, thus completing the chain. In view thereof, the baldassertions made on behalf of the appellant are outrightly rejected.34.The appellant has also contended that he did not have ownership ofthe said mobile number [REDACTED]. perusal of the testimony of PW-22,the nodal officer of Bharti Airtel Limited, would reveal that the mobilenumber- [REDACTED] was registered in the name of one, Dileep KumarMehto. Although PW-15 (appellant’s cousin) resiled from his depositionmade during his examination-in-chief, it has been clearly testified by himthat, Dileep Kumar Mehto is his friend, whose SIM Card for the said mobilenumber was lying with PW-15. PW-15 also deposed that he handed over theSIM Card for the said mobile number to the appellant, since Dileep KumarMehto had gone to his village at the relevant time. In this behalf it wouldalso be relevant to note that, PW-1 has deposed that whilst taking the roomon rent at House No.66, the appellant wrote his number on sheet of paperfrom notebook to give to PW-1 [Ex.P8]. PW-21 has also testified that afterobtaining the Call Details Record with regard to the said mobile number, theappellant’s cousin (PW-15) was traced and eventually, the appellant wasapprehended in Bihar.

35.In this behalf, it would also relevant to note that the Ld. Trial Courthas observed that merely because the said mobile number did not belong tothe appellant, it would not belie the case of the prosecution, inasmuch as, itis possible that whilst taking premises on rent, one gives number of hisacquaintance.

36.In view of the foregoing, the appellant cannot be heard to say thatmerely because the said mobile number was not registered in his name, hecould not have given the same to PW-1 whilst taking the room on rent atHouse No.66.

37.Coming now to the challenge to the recovery of the weapon of offenceat the instance of the appellant and of the key from his possession. It is

settled legal position that when recovery is effected pursuant to anystatement by the accused, the document prepared by the investigating officercontemporaneous with such recovery need not necessarily be attested by anindependent witness. If any such statement leads to the recovery of anyarticle, it is open to the investigating officer to take the signature of anyperson present at that time, on the document prepared for such recovery.However, if no witness was present, it would not make the documentprepared in relation to the recovery, tainted one and the recovery evidence,unreliable. [Ref: State, Govt. of NCT of Delhi v. Sunil and anr., reported as(2001) 1 SCC 652]

38.It would be trite to observe that it is common experience that publicpersons are generally reluctant to join police proceedings. Thus, the Courtcannot ignore this handicap with which the investigating agency has todischarge its duties. The Court, therefore, instead of doubting theprosecution case for want of public witnesses, must consider the broadspectrum of the prosecution story and then search for the nugget of truthwith regard to probability, if any, suggested by the accused. [Ref: Appabhai& Anr. v. State of Gujarat, reported as AIR 1998 SC 696]

39.In the present case, the recovery of broken knife which was used forthe commission of the offence, [Ex PW-12/A] was recovered from the DDA

Park behind DTC Bus Depot, Sec-8, Bagdola, Delhi, at the instance of theappellant. The testimony of PW-21/IO, clearly demonstrates that no publicwitness joined the investigation during the recovery of the said knife, despiterequest. The testimony of PW-17 also demonstrates that no public witnessesstopped to join the investigation when the recovery of the said knife wasbeing made at the instance of the appellant. Furthermore, the testimony ofPW-12, also makes it evident that despite the efforts of PW-21/IO to joinpublic witnesses during the recovery of the said knife, none joined theinvestigation.

40.Therefore, in light of the aforesaid position of law, in the present case,the recovery of the knife at the instance of the appellant cannot beconsidered as unreliable, purely, on account of non-joining of anyindependent witnesses during the seizure.41.The Hon’ble Supreme Court, in Tahir v. State, reported as AIR 1996SC 3079, with regard to the reliability on the testimony of the policeofficials in the absence of any public or independent witness has observedthat, no infirmity attaches to the testimony of police officials, merelybecause they belong to the police force and there is no rule of law orevidence which lays down that conviction cannot be recorded on theevidence of the police officials, if found reliable, unless corroborated by

some independent evidence. The rule of prudence only requires morecareful scrutiny of their evidence, since they can be said to be interested inthe result of the case projected by them. Where the evidence of the policeofficials, after careful scrutiny, inspires confidence and is found to betrustworthy and reliable, it can form basis of conviction and the absence ofsome independent witness of the locality to lend corroboration to theirevidence, does not in any way affect the credit worthiness of the prosecutioncase.

42.A perusal of the testimony of PW-21, PW-12, PW-16 and PW-17would reveal that key was recovered from the appellant whilst conductinghis personal search at the time of his arrest in Bihar [seizure memo Ex.PW-12/B]. The said key was identified before the Ld. Trial Court by PW-12. Thesaid seizure memo has been signed by PW-21, PW-12, PW-16 and PW-17.

PW-5 (public witness), resident of Muzaffarpur, Bihar, has testifiedthat he knows the appellant, as the latter used to reside in the neighbourhoodof his in-laws. He informed the police on 17.05.2011 that, the appellant hadgone to the house of his sister, in Muzaffarpur, Bihar.

The testimony of PW-8 (SI Raman Kumar, P.S. Town, Muzaffarpur,Bihar) would reveal that he joined the investigation conducted by the policeteam led by PW-21 in Bihar. PW-8 has further deposed that the appellant

was arrested by PW-21, at the instance of PW-5; and that key wasrecovered from the possession of the appellant. The testimony of PW-8further makes it clear that at the time of the arrest of the appellant, PW-5was present, who also signed the arrest memo [Ex.PW-8/C].

perusal of the arrest memo of the appellant would show that thesame was also signed by PW-5 and PW-8.

43.In view of the critical analysis of the evidence of the aforesaid policeofficials (PW-12, PW-16, PW-17, PW-21, PW-8), we are of the view thatthey are trustworthy witnesses and their evidence suffers from no infirmitywhatsoever. Nothing has been brought out in their cross-examination whichmay create any doubt about its veracity. Therefore, merely because theseizure memo of the key was not got signed by PW-5 or any otherindependent witness, the recovery of the said key cannot be said to betainted.

44.A perusal of testimony of PW-4 (Dr. Santosh Kumar, Sr. Resident,Department of Forensic Medicine, DDU Hospital, Delhi) would reveal thathe conducted the post-mortem examination of the dead body of the deceasedvictim. In the post mortem report [Ex.PW-4/A], it has been opined that thecause of death was shock caused by penetrating injuries to multiple vitalorgans caused by sharp edged pointed weapon like knife; all the injuries

were ante-mortem in nature. It has further been opined that the injuries weresufficient to cause death in the ordinary course of nature both, individuallyas well as in combination.

45.A perusal of the subsequent report rendered by PW-4 which isEx.PW-4/B, would reveal that all the injuries were possibly inflicted by theweapon of offence sent for examination.

46.One broken knife having metallic blade and plastic handle, which wasrecovered at the instance of the appellant was sent for scientific examinationalong with other articles, including the blood stained clothes of the deceasedvictim (maxi). The FSL result Ex.PW-21/L concludes that blood wasdetected on the maxi of the deceased victim; the weapon of offencerecovered at the instance of the appellant; and on one knife recovered fromthe crime spot. perusal of the FSL result further reveals that the bloodfound on the knife recovered at the instance of the appellant and the bloodfound on the clothes of the deceased victim was of ‘B’ group.

47.In view of the foregoing, it is manifest that, (i) the injuries found onthe body of the deceased victim had caused her death; and (ii) the saidinjuries were caused by stabbing the deceased victim using the knife whichwas recovered at the instance of the appellant, inasmuch as the same bloodgroup was found on the knife and the clothes of the deceased.

48.With regard to the last seen theory, it would be relevant to observethat, it is settled law that merely last seen together is not enough to form thebasis on which conviction of an accused can be founded. Therefore, thistheory has to be applied whilst taking into consideration the prosecution casein its entirety and keeping in mind the circumstances that precede and followthe point of being so last seen. The said theory finds application when thetime gap between the point of time when the accused and the deceased werelast seen alive and the deceased is found dead, is so small that the possibilityof any other person other than the accused being the author of the crimebecomes impossible. [Ref: Sahadevan and anr. v. State of Tamil Nadu,reported as (2012) 6 SCC 403; Ramreddy Rajesh Khanna Reddy v. State ofA.P., reported as (2006) 10 SCC 172]

49.In this behalf, it is relevant to note that the post mortem wasconducted on 19.05.2011. The post-mortem report concludes that the deathwas caused 8.5 days prior to the date on which the post-mortem wasconducted, viz. 10/11.05.2011.

50.Further, the testimony of PW-1 and PW-11 establishes that theappellant was last seen together with the deceased victim on 10.05.2011, i.e.the date of the incident, at 10.00 P.M. and 11.30 P.M., respectively.

51.In view of the aforesaid legal position, no fault can be found in thefinding of the Ld. Trial Court with regard to the application of the last seentheory whilst convicting the appellant, inasmuch as, the Ld. Trial Court hasconsidered the medical evidence [post mortem report, Ex.PW-4/A] andtestimony of PW-1 and PW-11, and concluded that the appellant was lastseen with the appellant on 10.05.2011, i.e. the date of the incident.

52.Where an accused is alleged to have committed the murder of his wifeand the prosecution succeeds in leading evidence to show that shortly beforethe commission of crime they were seen together, or the offence takes placein the dwelling home where the husband also normally resided; it has beenconsistently held that, if the accused does not offer any explanation how thewife received injuries or offers an explanation which is found to be false, itis strong circumstance which indicates that he is responsible forcommission of the crime. [Ref: Ganeshlal v. State of Maharashtra,reported as 1992CriLJ1545]

53.In this behalf, it would also be relevant to observe that the principleunderlying Section 106, Indian Evidence Act, 1872, provides that the burdento establish the facts in the exclusive knowledge of the accused, is cast onthe accused person concerned; and if he fails to establish or explain thosefacts, an adverse inference of facts may arise against him, which coupled

with the presumptive evidence adduced by the prosecution would rebut thepresumption of innocence in favour of that person, and in the result, provehim guilty.

54.Therefore, in keeping with the dictum of the Hon’ble Supreme Courtin Ganeshlal v. State of Maharashtra (supra), mere denial of theprosecution case, coupled with absence of any explanation, can beconcluded to be consistent with the hypothesis that the appellant hascommitted the murder of his wife/the deceased victim.

55.It is the argument of the appellant that no motive for the crime hasbeen established. In Subedar Tewari v. State of U.P. reported as 1989 Supp(1) SCC 91, the Hon’ble Supreme Court observed that the evidenceregarding existence of motive which operates in the mind of an assassin isoften not within the reach of others. The motive may not even be known tothe victim of the crime. The motive may be known to the assassin and noone else may know what gave birth to the evil thought in the mind of theassassin. It is needless to state that where the case of the prosecution hasbeen proved beyond reasonable doubt on the basis of the material producedbefore the Court, the motive loses its significance. But in cases based oncircumstantial evidence, motive for committing the crime does assumeimportance. In such circumstances, absence of motive would put the Court

on its guard and receive it to scrutinize the evidence very closely in order toensure that suspicion, emotion or conjecture, do not take the place of proof.[Ref: Surinder Pal Jain v. Delhi Administration, reported as 1993 Supp (3)SCC 681;Tarseem Kumar v. Delhi Administration reported as 1994 Supp(3) SCC 367]

56.In the instant case, in view of the elaborate discussion hereinabove, itis manifestly clear that the appellant had occasion to commit the crime,inasmuch as, the deceased victim was residing with him at the House No.66and he was last seen with the latter before the crime was committed.Secondly, the medical and scientific evidence adduced by the prosecution inthis case clearly establishes that the death of the deceased victim was causeddue to the stab injuries suffered from the knife that was recovered at theinstance of the appellant. Therefore, in our view the case of the prosecutionhas been established beyond all reasonable doubt and has been completelycorroborated by way of medical as well as scientific evidence, as discussedhereinabove. Absence of motive by itself cannot form the basis for ourholding otherwise.

57.The five golden principles expounded by the Hon’ble Supreme Courtin Hanumant (supra) have been duly satisfied in the instant case. As alogical corollary, it follows that the murder of the victim cannot be explained

on any other hypothesis except the appellant’s guilt. In other words, theprosecution has fulfilled all the essential requirements of criminal casewhich rests purely on circumstantial evidence.

58.In view of the foregoing, there appears to be no circumstance thatwarrants an interference with the decision of the Ld. Trial Court.

59.Consequently, the conviction of the appellant as recorded in theimpugned judgment as well as the sentence awarded to him by way of theorder on sentence, are upheld.

60.The present appeal is accordingly dismissed, with no order as to costs.61.Copy of the judgment be supplied to the appellant through theSuperintendent, Central Jail, Tihar and also be sent for updation of therecords.

SIDDHARTH MRIDUL, J.

MUKTA GUPTA, J.

SEPTEMBER 01, 2017dn/mk/sb/ap