CRL.A./1283/2015 of DILIP @ DEEPAK Vs STATE

IN THE HIGH COURT OF DELHI AT NEW DELHI

CORAM:HON'BLE MR. JUSTICE VIPIN SANGHIHON'BLE MR. JUSTICE P.S.TEJI

JUDGMENT

P.S. TEJI, J.

1.The present appeal has been filed by the appellant underSection 374(2) of the Cr.P.C. against the judgment dated 10.08.2015whereby the appellant has been convicted under Section 498A/304B/302 IPC and against the order on sentence dated 12.08.2015 wherebythe appellant has been sentenced to undergo two years rigorousimprisonment along with fine of Rs.10,000/- and in default ofpayment of fine to further undergo two months imprisonment underSection 498A IPC; to undergo life imprisonment with fine ofRs.20,000/- and in default of payment of fine to further undergo twomonths imprisonment under Section 302 IPC; and to undergo tenyears rigorous imprisonment along with fine of Rs.20,000/- and in

defaultofpaymentoffinetofurtherundergotwomonthsimprisonment under Section 304B IPC.

2.Factual matrix, emerging from the record, is that themarriage of the appellant was solemnized with deceased Poonam on07.07.2011 and thereafter the deceased started residing with theappellant at her matrimonial home. It was alleged that the appellantwas cruel towards his wife and used to beat her up.The appellantused to taunt his wife that she had brought insufficient dowry andused to ask her to bring more cash and car from her father.On25.12.2011 at about 4.40 a.m., an information was received at thepolice station regarding quarrel in the street where the house of theappellant was situated. On the same day, at about 5.10 a.m., anotherinformation was received from the hospital to the effect that Poonamwho was admitted in an injured condition by her husband had beendeclared as “brought dead”. SI Brij Bhushan and Ct.Sunil rushed tothe spot and found blood lying there. Further investigation of the casewas entrusted to Insp. Dharam Pal Singh. Father of the deceased wasinformed about the incident and he made statement before theExecutive Magistrate to the effect that his deceased daughter used tobe frequently harassed on account of bringing insufficient dowry.

3.On the basis of the statement made by the father of thedeceased, FIR of the instant case was registered. Postmortem on thedead body of deceased was conducted and as per the opinion of thedoctor, death of the deceased was caused due to cranio-cerebraldamage consequent upon head injuries which were ante-mortem in

nature and caused by heavy blunt object. Weapon of offence i.e.wheel paana was recovered from the house of the appellant. After thecompletion of investigation, charge sheet was filed in the Court.

4.Charge under Sections 498A/304B IPC and an alternatecharge under Section 302 IPC was framed against the appellant towhich he pleaded not guilty and claimed trial. In order to prove itscase, the prosecution had examined 23 witnesses, namely, OmPrakash (PW1), Vishnu Bhagwan (PW2), HC Devender (PW3),Ranbir (PW4), Saroj (PW5), Ct.Basheer (PW6), Ct.Ravi Kant (PW7),Mahendra Prasad Kushwaha (PW8), HC Phool Kumar (PW9), SI AnilKumar (PW10), Sumit Sahu (PW11), Rohit (PW12), Ct.Ashok(PW13), Insp.Manohar Lal (PW14), SI Anil Kumar (PW15), Ct.Rahul(PW16), HC Jagbir Singh (PW17), Dr.Bhim Singh (PW18), W/Ct.Sunita (PW19), SI Brij Bhushan (PW20), Insp. Jai Prakash Meena(PW21), Dr.Deepak Chugh (PW22) and Insp.Dharam Pal Singh(PW23).

5.After conclusion of prosecution evidence, statement ofthe appellant under Section 313 Cr.P.C. was recorded in which hedenied the case of the prosecution. He claimed that three persons hadtrespassed into their house and he learnt about the same only whenPoonam had fallen upon him. He immediately got up and saw thosethree persons. He saw his wife bleeding from her head and tried tosave himself from those persons. He is alleged to have even kickedthose persons and due to jerk, the TV fell down.Thereafter, heraised noise and his brother came upstairs and thereafter all the three

persons fled away.Despite opportunity, the appellant did not leadany evidence in his defence.

6.Upon appreciation of evidence and material available onrecord, the trial court convicted the appellant under Sections498A/304B/302 IPC and sentenced him for the said offences. Feelingaggrieved by the judgment of conviction and order on sentence, thepresent appeal has been preferred by the appellant.

7.Argument advanced by the counsel for the appellant wasthat, as per the statement given by PW22 Dr.Deepak Chugh, thedeceased was brought to the hospital by the appellant and hisrelatives. It was submitted that had the appellant been involved in thecrime, it was not expected of him to take his wife to the hospital. Itwas further submitted that as per the testimony of PW8 Sh.MahenderPrasad Kushwaha, Executive Magistrate, except the father of thedeceased, no other person had disclosed about the harassment andcruelty meted out to the deceased.It was further argued that theappellant was tempo driver and thus did not have the status tomaintain car which was allegedly demanded by him as dowry. Itwas further submitted that statements of PW4 and PW8 arecontradictory to each other, and the theory regarding demand ofdowry is baseless.It was argued that the prosecution had failed toestablish that there was any demand of dowry by the appellant. It wassubmitted that the appellant had not committed the murder of his wife.Rather, on the day of the incident, some trespassers attacked his wifewhich caused the death of the deceased. It was further submitted that

no motive of the alleged offence had been proved on record againstthe appellant. It was further submitted that the case of the appellantcould not be defended properly and as per Article 21 of theConstitution of India, he had every right to be properly defended. Insupport of this submission, he has relied upon judgments in the caseof Behram Khursheed v. State of Bombay (1955) 1 SCR 613 andOlga Tellis v. Bombay Municipal Corp. (1985) 3 SCC 545.

He has further referred to judgment of Allahabad HighCourt in the case of Dr.Nupur Talwar v. State of U.P. and Anr.(Criminal Appeal No.293/2014) to press the contention that theappellant cannot be convicted on the basis of Section 106 of theEvidence Act as the prosecution is bound to prove beyond reasonabledoubt all the circumstances against the accused to prove the guilt. Itwas further contended that since the prosecution has failed to establishother circumstances, aid of Section 106 of the Evidence Act cannot betaken to base the conviction of the appellant.

8.Per contra, learned APP for the State argued that thepresent case is based on circumstantial evidence. The prosecution hadbrought on record sufficient evidence to link all the circumstanceswhich point towards the guilt of the appellant-that he had committedthe murder of his wife.It was further argued that the publicwitnesses, as well as police officials, and doctors had duly supportedthe case of the prosecution to the effect that the deceased wassubjected to cruelty and harassment on account of demand of dowryand suffering the injury with Paana Ex.P3 recovered at the instance of

the appellant, thus there was no infirmity in the judgment and orderon sentence passed by the trial court.

9.We have heard the arguments advanced by both the sidesand have gone through the evidence and material available on record,meticulously.

10.PW4-Ranbir is the father of the deceased.He haddeposed that Poonam was his second issue. She was married with theaccused Deepak @ Dalip as per Hindu rites and ceremonies in July,2011.He further deposed that two months prior to her death, hisdaughter Poonam came to her parental house and informed them thather husband accused Deepak @ Dalip used to beat her up and wasdemanding car. Thereafter, PW4 had talked with accused Deepak@ Dalip and his parents and told them that he had given motorcycle,one gold ring and one gold chain at the time of the marriage apartfrom other articles. PW4 told them that he was not in position togive them car as it was beyond his financial capacity. He furtherdeposed that on 25.12.2011 at about 7.00 a.m., mediator KhazanSingh told him that Deepak had murdered Poonam by hitting her withPana rod.PW4 along with his neighbours reached the house ofDeepak where he came to know that his daughter had been killed byaccused Deepak @ Dalip.Thereafter, he reached BJRM hospitalwhere he saw the dead body of his daughter.One ExecutiveMagistrate met him in the hospital. Statement (Ex.PW4/A) of PW4was recorded. He had identified the clothes of his deceased daughterin the Court as Ex.P1.

During cross-examination, PW4 stated that on that day,Khazan Singh came to his house at about 7.00 a.m. and informed himabout the occurrence. He had inquired from Khazan Singh as to howhe had received the information, to which he stated that he hadreceived telephonic information. When they reached Jahangirpuri,the Pana-rod was lying in the room smeared with blood.He alsostated that he had talk with his daughter two months prior to herdeath. In between those two months, his daughter had talk with herelder sister Saroj who had told informed about the said facts to him.He had informed the police and also the SDM that two months beforeher death, when his daughter Poonam complained him about thedemand of car by the accused, he had talk with the father of theaccused.He denied the suggestion that accused did not treat hisdaughter with cruelty, and did not harass her. He further denied thathis daughter sustained injuries during the theft in the house due towhich she died.

11.PW5 Saroj is the elder sister of the deceased. She haddeposed that deceased Poonam was her younger sister. She furtherdeposed that prior to two months of the death of Poonam, she hadgone to her parental house, wherein her younger sister Poonam wasalso present. When Poonam met this witness, she told her that herhusband Deepak @ Dalip used to beat her up and used to compel herto bring money for his expenses, and tortured her for bringing carfrom her father and also to bring money from her father.On25.12.2011, on receipt of information regarding death of her sister

Poonam, she had reached the matrimonial house of Poonam whereshe came to know that Poonam had been murdered by her husband,accused Deepak @ Dalip.

During cross-examination, PW5 stated that her fathermight have asked accused to keep her sister well and properly. Shedenied that her sister had not told her on the telephone that accusedwas demanding car or money. She stated that she was called by hersister on telephone and when she met her, she told her about thedemand of car or money made by the accused.

12.PW12 Rohit is the brother of the deceased. PW12 haddeposed that Poonam was married with accused Dalip @ Deepak.After the marriage, accused Dalip had started torturing his sisterPoonam. He used to hear about the same from Poonam when Poonamused to complain against accused Dalip to his elder sister. He furtherdeposed that on 25.12.2011, his sister Poonam was killed by accusedDalip @ Deepak, as 4-5 days prior to the occurrence, he had gone tomeet his sister Poonam at Jahangirpuri and at that time accused Dalip@ Deepak had said to him “tere pita ne abhi tak gaadi kee maangabhee tak poori nahi kee hai, us se jakar keh dena kee agar gaadinahi dee to, teri behen ko chod dega” (your father has not fulfilled thedemand of car till now, inform him that if car is not given, his sisterwould be left). He further deposed that accused abused him due towhich he started weeping, at which his sister consoled him.Aftercoming back to his house, he had informed about the same to hisfather.He stated that since his father was unable to fulfil the said

demand, accused had killed his sister.

13.From the testimony of PW4, father of the deceased, it hasbeen established that prior to two months of the death of the deceased,she had informed PW4 that the appellant used to beat her up, and thathe was demanding car.Testimony of PW4 has duly beencorroborated by PW5-Saroj, sister of the deceased.PW5 hascategorically stated that when she went to her parental home, she metwith the deceased who informed her that the appellant used to beat herup and compel her to bring money from her father, for his expenses.Deceased also told PW5 that the appellant used to torture her forbringing car and money from her father. PW12-Rohit, brother of thedeceased also corroborated the testimony of his father (PW4) andsister (PW5). PW12 has specifically stated that when he visited thematrimonial home of his deceased sister, accused told him that hisfather had not fulfilled the demand of car and if the car was not given,the deceased would be left. Though, the above witnesses were cross-examined at length by the defence, but the defence failed to dent theirtestimonies that the appellant used to torture and harass his deceasedwife Poonam for or in connection with demand of dowry. Thus, theoffence under Section 498A IPC is duly proved against him and hisconviction and sentence are liable to be upheld.

14.Now,comingtothesecondpartoftheoffencecommitted by the appellant. The appellant was charged for offenceunder Section 304B IPC for committing the dowry death of thedeceased, and in alternate, under Section 302 IPC for committing the

murder of the deceased. Having examined the record, we are of theconsidered view that from the evidence placed on record, the case ofcommission of murder of the deceased by the appellant is made out,and not that of her dowry death which is discussed as under.

15.The present case is based upon circumstantial evidenceand not on direct evidence. There are several circumstances on recordwhich point to the fact that the appellant committed the murder of hiswife.The first being, he was alone in the house along with hisdeceased wife when the incident took place in the dead of the night.Second being, the weapon of offence was recovered from the house ofthe appellant.Third being, false plea has been taken by theappellant in his defence, which he has not substantiated or evenprobabilized.

16.It is alleged against the appellant that on the night of theincident, he was alone in the house with his deceased wife and that hehad committed her murder with the use of wheel paana.On theother hand, defence taken by the appellant is that some trespassersentered their house on the night of the incident, attacked his wife dueto which she fell upon him, and he woke up to find his wife bleedingfrom the head.

17.PW18-Dr.Bhim Singh had deposed that on 25.12.2011,he conducted the post-mortem examination on the dead body ofPoonam. On examination, he found lacerated wound 3cm x 1cm xbone deep in the middle of the head; lacerated wound 3cm x 1cm x

bone deep over right parietal region of head and lacerated wound 4cmx 1.5cm x bone deep over right parietal temporal region of head. Onan internal examination, he found that the head showed an effusion ofblood in the scalp tissues below the injuries with underline depressedfracture upto middle cranial fossa. The brain showed an extensive subdural, sub archanoid, ventricular blood with contusion below theinjuries.As per opinion of the doctor, death was caused due tocranio-cerebral damage consequent upon head injury. All the injurieswere opined to be antemortem in nature, fresh in duration and werecaused by hard heavy blunt object. It was also opined that the injurieswere sufficient to cause death in the ordinary course of nature.Pertinently, time since death was opined as about 12 hours.Heproved his report as Ex.PW18/A.Subsequently, he examined thewheel pana Ex.P3 and gave his opinion Ex.PW18/B that the injuriesno.1 to 3 mentioned in post-mortem report Ex.PW18/A were possibleby the said weapon of offence.

18.From the post-mortem report, it is apparent that the deathof the deceased was homicidal death, and otherwise than in naturalcircumstances. As per Section 106 of the Indian Evidence Act, whenany fact is especially within the knowledge of any person, the burdenof proving that fact is upon him.When it was pleaded by theappellant that trespassers had entered their house on the fateful nightand caused head injuries upon his wife which resulted into her death,the onus to prove the said fact was upon the appellant.

19.Apart from taking the plea of causing injuries on the

head of his wife by some thieves, the appellant had not examined anywitness, including his brother Vinod, to substantiate his plea.Theappellant was given an opportunity to adduce defence evidence but hedeliberately chose not to examine any witness in his defence. It hascome on record that it was the appellant and his wife who wereresiding in their house alone. What had happened inside the house onthe fateful night can be explained by the appellant alone, as he was thelone survivor after the death of his wife in the room. The appellantwas the master of the circumstances which took place within the fourwalls where the murder of the deceased had taken place, and he wasthe best person to prove the fact of murder by some third parties, asthe said fact was within his special knowledge. There was no evidenceof break-in into the appellant’s residence, or of any theft. Theappellant has not explained as to how is it that his wife was awake, orshe woke up when the so called trespassers came in and he keptsleeping; why she did not raise an alarm and wake him upimmediately on realising that there had been trespass in her home inthe dead of the night; how come he woke up only after the victim hadbeen fatally hit on the head by the so called trespassers, and she fellon him. The present case is case based on circumstantial evidenceand not on direct evidence which puts duty upon the appellant toexplain the circumstances under which his wife sustained head injury,which was opined to be the cause of her death. Thus, the accused hasfailed to discharge the onus put upon him by Section 106 of theEvidence Act.

20.The plea taken by the appellant appears to be cooked-up story. It would be pertinent to mention that PCR officials reachedthe spot at about 4.40 a.m. but the appellant was not available at thespot. The MLC Ex.PW22/A of the deceased shows that the deceasedwas taken to the hospital at 5.00 a.m. but was declared “broughtdead”, when as per the postmortem report Ex.PW8/A, death of thedeceased had taken place at around 12.30 a.m. Equally pertinent it isto note that the appellant had not raised his plea, taken by him in hisdefence before the doctor.

21.In similar circumstances, the Supreme Court in the caseof Shambu Nath Mehra v. The State of Ajmer AIR 1956 SC 404held that :

“This lays down the general rule that in acriminal case the burden of proof is on theprosecution and Section 106 is certainly notintended to relieve it of that duty. On thecontrary, it is designed to meet certainexceptional cases in which it would beimpossible, or at any rate disproportionatelydifficult for the prosecution to establish factswhich are 'especially' within the knowledgeof the accused and which he could provewithout difficulty or inconvenience. Theword 'especially' stresses that. It means factsthatarepre-eminentlyorexceptionallywithin his knowledge. If the section were tobe interpreted otherwise, it would lead to thevery startling conclusion that in murdercase the burden lies on the accused to provethat he did not commit the murder becausewho could know better than he whether he

did or did not. It is evident that that cannotbe the intention and the Privy Council hastwice refused to construe this section, asreproduced in certain other Acts outsideIndia, to mean that the burden lies on anaccused person to show that he did notcommit the crime for which he is tried.These cases are Attygalle v. Emperor A.I.R.1936 P.C. 169 and Seneviratne v. R. [1936]3 All E.R. 36, 49”

22.Further in the case of State of West Bengal vs. MirMohammad Omar & Ors. etc. AIR 2000 SC 2988,while discussingsection 106 of the Evidence Act, the court observed that:

“The section is not intended to relieve theprosecution of its burden to prove the guiltof the accused beyond reasonable doubt. Butthe Section would apply to cases where theprosecution has succeeded in proving factsfrom which reasonable inference can bedrawn regarding the existence of certainother facts, unless the accused by virtue ofhis special knowledge regarding such facts,failed to offer any explanation which mightdrivethecourttodrawadifferentinference.”

23.In the case of Trimukh Maroti Kirkan vs. State ofMaharashtra(2006) 10 SCC 681, scope of Section 106 of theEvidence Act was further discussed and it was observed as under :

“If an offence takes place inside the privacyof house and in such circumstances wherethe assailants have all the opportunity toplan and commit the offence at the time andin circumstances of their choice, it will be

extremely difficult for the prosecution tolead evidence to establish the guilt of theaccusedifthestrictprincipleofcircumstantial evidence, as noticed above, isinsisted upon by the Courts. Judge doesnot preside over criminal trial merely tosee that no innocent man is punished. AJudge also presides to see that guilty mandoes not escape. Both are public duties. Thelawdoesnotenjoinadutyontheprosecutiontoleadevidenceofsuchcharacter which is almost impossible to beled or at any rate extremely difficult to beled. The duty on the prosecution is to leadsuch evidence which it is capable of leading,having regard to the facts and circumstancesof the case.”

24.The plea taken by the appellant is that some trespassers/thieves entered their house on the fateful night and caused injury onthe head of his wife which he realised when his wife fell upon him.As discussed above, the said plea appears to be false one as theappellanthasnotbroughtonrecordanyevidence-oralordocumentary, to substantiate such plea which is an additional link inthe chain of circumstances.In similar circumstances, the SupremeCourt in the case of Sharad Birdhichand Sarda vs. State ofMaharashtra, AIR 1984 SC 1622 observed that :

“It is well settled that the prosecution, muststand or fall on its own legs and it cannotderive any strength from the weakness of thedefence. This is trite law and no decision hastaken contrary view. What some caseshave held is only this: where various links ina chain are in themselves complete, then

false plea or false defence may be calledinto aid only to lend assurance to the Court.In other words, before using the additionallink it must be proved that all the links in thechain are complete and do not suffer fromany infirmity. It is not the law that wherethere is any infirmity on lacuna in theprosecution case, the same could be cured orsupplied by false defence or plea whichis not accepted by Court.”

25.Further, in the case of Subhash Chand vs. State of

Rajasthan (2002) 1 SCC 702 it was observed as under :

“In Dhananjoy Chatterjee's case (supra), thedecision of this Court in Sharad BirdhichandSarda vs. State of Maharashtra, 1984 CriLJ1738, was relied on. In the later case, it wasalso held that false explanation or falseplea taken by the accused can be used as anadditional link in the chain of circumstantialevidence subject to satisfaction of threeessential conditions, namely (i) various linksinthechainofevidenceledbytheprosecution have been satisfactorily proved,(ii) the said circumstance points to the guiltof the accused with reasonable definiteness,and (iii) the circumstance is in proximity tothe time and situation.”

26.Another circumstance in the present case is that theweapon of offence was recovered from the spot itself. PW4-RanbirSingh has categorically stated that when he visited the spot, he hadseen the rod paana lying in the room and the same was smeared withblood.PW18-Dr.Bhim Singh has stated that on 13.01.2012, hereceived an application from Insp. J.P. Meena along with one sealed

pullanda.On opening the pullanda, he found one iron rod (wheelpana) Ex.P3. PW18 also mentioned the description of the weapon inhis report by preparing its sketch. He examined the said weapon andgave his report Ex.PW18/B stating that injuries no.1 to 3 mentioned inthe post-mortem report Ex.PW18/A were possible by the said weaponof offence. There was no cross-examination of PW18 by the defenceto the effect that the wheel paana Ex.P3 was not used in thecommission of the crime. As per the postmortem report Ex.PW18/A,injuries sustained by the deceased on her head were caused by hardheavy blunt object and the said fact has been duly substantiated byreport Ex.PW18/B of PW18 to the effect that the injuries mentionedin postmortem report were possible by the wheel paana Ex.P3.

27.Another circumstance which links the appellant to thechain of events is that the first Daily Diary entry was recorded by thepolice at about 4.40 a.m. regarding taking place of quarrel near thehouse of the appellant and then the deceased Poonam was brought tothe hospital at about 5.00 a.m. wherein she was declared “broughtdead”.Even at that stage, the appellant did not claim, or raise analarm in the neighbourhood, that his wife had been injured byunknown trespassers.The postmortem on the dead body of thedeceased was conducted at 12.30 p.m. on 25.12.2011, and the timesince death was opined to be about 12 hours.From the opinionexpressed by the doctor, the death of the deceased could have takenplace about 12 hours back, meaning thereby around 12 midnight. Onthe other hand, plea of the appellant is that the trespassers entered

their house around 4.30 a.m. and they caused injuries to the deceased.The time since death of the deceased mentioned in the postmortemreport Ex.PW18/A further falsifies the plea of the appellant that thedeath of the deceased had taken place in the manner and at the timeexplained by him.Therefore, the judgment relied upon by theappellant in case of Dr.Nupur Talwar (supra) is of no help to himinasmuch, as, prosecution has successfully established the completechain of events, i.e. the appellant was the master of circumstances onthe night of the incident; weapon of offence was recovered at theinstance of the appellant, and, false plea of defence was taken by theappellant

28.So far as the contention of the appellant that he was notgiven any due and proper opportunity to defend himself is concerned,the same is without any basis. Perusal of the testimony of prosecutionwitnesses shows that they were cross-examined at length from theside of the defence. Also, an amicus curiae was appointed by the trialcourt to give fair and reasonable opportunity of defence to theappellant.After the conducting of entire the trial, examination ofprosecution witnesses, recording of statement of the appellant underSection 313 Cr.P.C. and delivering the judgment of conviction andorder on sentence, the appellant, at this stage, cannot be allowed toraise an entirely new and unsubstantiated plea that he was not given afair opportunity of defence during the trial. Even otherwise, the sameis not borne out from the record.

29.In view of the above mentioned facts and circumstances,

this Court is of the considered opinion that the appellant has failed tomake out any ground in support of the present appeal.Rather theprosecution has successfully established all the circumstances whichlead to the only conclusion that the deceased was murdered by theappellant himself and none else. The entire chain of events have beenduly proved, and the prosecution has successfully established its caseagainst the appellant.Therefore, conviction of the appellant underSection 302 IPC is liable to be upheld.

30.So far as the conviction of the appellant under Section304B is concerned, we are of the view that since he has beenconvicted under Section 302 IPC, he cannot be punished forcommission of dowry death as the parameters to hold person guiltyfor both these offences are altogether different.Consequently, theconviction and sentence of the appellant under Section 304B IPC ishereby set aside.

31.As discussed above, the judgment of conviction of theappellant under Section 498A and 302 IPC and the sentence awardedto him are accordingly upheld.

32.With the above modification in the conviction of theappellant, the appeal is disposed of.

P.S. TEJI, J

NOVEMBER 13, 2017/dd

VIPIN SANGHI, J