* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.APPl. No.778/2012

Reserved on: October 28, 2017
Date of Decision : November 25, 2017

BIRJU KUMAR PASWAN …..Appellant
Through Ms. Saahila Lamba, Advocate
(DHCLSC)
Versus

STATE … Respondent
Through Ms. Rajni Gupta, APP with
ACP Jagpal Singh and
Inspector Rajeev PS. Inderpuri.

CORAM:
HON’BLE MR. JUSTICE MUKTA GUPTA
HON’BLE MR. JUSTICE NAVIN CHAWLA

NAVIN CHAWLA, J.

1. The present appeal has been filed by the appellant, Birju Kumar
Paswan, challenging the judgement and order dated 29 th July, 2011
passed by the Additional Session Judge, Dwarka Courts in Session
Case no. 43/11 whereby the appellant was convicted under Section
302 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’
and the order of sentence dated 29th July, 2011 sentencing the
Appellant to imprisonment for life with fine of Rs. 10,000/-.

2. The case of the prosecution is that on the intervening night
between 5th April, 2010 and 6th April, 2010 at about 12:05 AM, the
appellant brought his wife Neelu (hereinafter referred to as

Crl.A. 778/2012 Page 1
‘deceased’) to the Ram Manohar Lohia (RML) Hospital, New Delhi.
She was declared dead by the doctor who examined her in the
hospital. The duty constable at the hospital passed on this information
to the Police Station Inderpuri on basis of which DD No.4A was
recorded and handed over to ASI Mahaveer Singh (PW-19). ASI
Mahaveer Singh reached the hospital and collected MLC of the
deceased, he informed the concerned SDM and also telephoned the
family members of the deceased. On 7th April, 2017, the brother of
the deceased, Shri Anil Kumar Paswan (PW-4) reached Delhi. His
statement was recorded before SDM, Delhi Cantt (Ex.PW-1/A).
Based on the statement, SDM (Delhi Cantt) (PW-1) issued a direction
to SHO, Police Station Inderpuri to register a case and investigate the
matter (Ex.PW-1/B) and consequently, FIR No. 50/10 was registered
in Police Station Inderpuri on 8th April, 2010 under Section
304B/498A IPC. After receipt of Post Mortem Report (Ex.PW-13/A)
on 21st April, 2010, Section 302 IPC was added in the FIR.

3. The appellant was taken into custody on 9th April, 2010. It is the
case of the prosecution that on 22nd April, 2010, the appellant made a
disclosure statement (Ex.PW-21/A) and got recovered a piece of wire
from the roof of his house saying that the same piece of wire was used
in committing the strangulation of his wife. The said piece of wire
was taken into custody vide Seizure Memo (Ex.PW-21/B). On 16th
July, 2010, the wire was shown to Dr. G.A. Sunil Kumar Sharma who
had also conducted the Post Mortem of the dead body of the deceased
and he opined that the possibility of ligature mark mentioned in the

Crl.A. 778/2012 Page 2
Post Mortem Report being produced by the wire cannot be ruled out
(Ex.PW-13/B).

4. The following charges were framed against the appellant on
20th September, 2010:-

“That on 06.04.2010 death of Neelu (wife of Birju
Kumar Paswan) was caused by bodily injury or
otherwise than under normal circumstances, within
seven years of her marriage and soon before her death,
she was subjected to cruelty or harassment by you for,
or in connection with, any demand for one Gold chain
and Colour T.V. thereby you committed an offence
punishable u/s.304B IPC.

In alternative Charge on the aforesaid date, month and
year within jurisdiction of P.S. Inderpuri, you
intentionally killed your wife namely Neelu and thus,
committed an offence punishable u/s.302 IPC within my
cognizance.

That on or before 06.04.10 you being the husband of
deceased Neelu, subjected her to cruelty for demand of
one Gold chain and Colour T.V. thereby committed an
offence punishable u/s.498 IPC and within my
cognizance.”

5. The prosecution examined the brother of the decased, Shri Anil
Paswan (PW-4), mother of the deceased Smt. Jharokha Devi (PW-3)
and the maternal uncle of the deceased, Shri Prabhu Paswan (PW-5)
to bring home the charge and offence under Section 304B/498A IPC.
The learned Additional Session Judge, however, found both these
charges as not proved and discharged the appellant of such charges by
way of his impugned order. The State is not in appeal before us and
neither do we find any ground to interfere with the said finding.

Crl.A. 778/2012 Page 3

6. The learned Additional Session Judge, however, relying upon
the statement of Ms. Lalita (PW-7) and Shri Dheeraj Kumar (PW-11),
who were the neighbours of the appellant and the deceased as also the
statement of Dr. Meeknakshi who had prepared the MLC (Ex.PW-
14/A) concluded that the prosecution has been able to prove the
presence of the appellant in the company of the deceased immediately
before her death. The learned Additional Session Judge further
observed that in these circumstances, it was for the appellant to
explain the death of his wife, however, in his statement under Section
313 Cr.P.C, the appellant had not rendered any such explanation,
including whether the deceased had committed suicide either in his
presence or in his absence. Relying on the Post Mortem Report
(Exb.PW-13/A), it was concluded that the death of the deceased was
not due to natural causes and the recovery of the wire at the instance
of the appellant coupled with the statement of Dr. Sunil Kumar
Sharma (PW-13) who opined that the death having been caused by the
said wire cannot be ruled out clearly led to the guilt of the appellant in
having caused death of his wife by strangulation. The learned
Additional Session Judge further held that merely because the motive
for the crime was not clear or was weak, was not sufficient to acquit
the accused when the other circumstances point towards his guilt only.

7. The learned counsel for the appellant has contended that there is
no direct evidence to establish connection of the appellant with the
offence of murder of the deceased. The case of prosecution being
based on circumstantial evidence, complete chain of links connecting

Crl.A. 778/2012 Page 4
the appellant with the offence of murder of the deceased has not been
proved. Mere presence of the appellant in the matrimonial house at
the time of the death of the deceased is not sufficient to convict the
appellant, particularly when no motive could be established; presence
of mother of the appellant is also emerging on record; and the
appellant did not abscond after the alleged incident. She further
contends that the alleged recovery of wire is extremely weak piece of
evidence as the incident had occurred in the intervening night of 6/7 th
April, 2010, the appellant was arrested at his residence on 9th April,
2010 and the alleged recovery was made only on 22nd April, 2010.

8. It is true that the present case is one of circumstantial evidence.
There is no eye witness to the offence. The Court, therefore, has to
find if the prosecution has been able to prove its case by forming a
complete chain of links connecting the appellant to the offence. In
this chain of links, statement of Shri Anil Paswan (PW-4) brother of
the deceased and Smt. Jharokha Devi (PW-3) are important as they
show that the marriage between the appellant and the deceased was
not a happy one. The marriage had taken place on 24th May, 2009 and
the death of the deceased was on the night intervening 6/7 th April,
2010 i.e. within a period of less than one year. Even during this
period, for most part i.e. between Diwali and Holi, the deceased
stayed at her parental home away from the appellant. Though the
testimonies of PW-3 and PW-4 were not found sufficient to bring
home the charge of Section 304B and 498A against the appellant, they
do clearly show that the marriage was not a happy one.

Crl.A. 778/2012 Page 5

9. The Medical Legal Case (MLC) (Ex.PW-14/A) was recorded at
12:05AM on 6th April, 2010. It records that the deceased was brought
to the hospital by the appellant. Ms. Lalita (PW-7) states that about
10:00PM on the night of 5th April, 2010 while she was sleeping, she
heard some noise coming from outside. When she reached the house
of the appellant, she found many persons present there including the
appellant. Though she denies having made any statement to the
police, this part of her testimony remained unchallenged. The same is
also proved from the statement of Smt. Sunita Devi (PW-6) and Shri
Dheeraj Kumar (PW-11). From the above, it is evident that the death
of the deceased had taken place late at night in her matrimonial home
and the appellant was present in the matrimonial home at that time.

10. The Post Mortem Report (Exb. PW-13/A) records the following
injuries on the body of the deceased:-

“Ligature mark over upper part of the neck measuring
15cm in length, 0.25cm in width located 6.5cm below
chin, 3cm below right ear and 3.5cm below left ear.
On deeper dissection of the neck there was slight
extravasation of blood under the skin and muscle.”

11. The cause of the death was opined as:-

“Asphyxia cause by the application of ligature around
the neck lavever viscera preserved to rule not any
poisoning.”

12. Dr. G.A.Sunil Kumar Sharma (PW-13) proved the above report.
Though in answer to a question, he states that “ligature mark is

Crl.A. 778/2012 Page 6
possible in both cases in hanging and strangulation” it is nobody’s
case that the deceased had been found hanging. This is important
when we further deal with the conduct of the appellant and his failure
to offer any explanation on the circumstances of the death of the
deceased. In any case, it is proved by the prosecution that the death of
the deceased was not due to natural causes.

13. Section 106 of the Indian Evidence Act, 1872 puts the burden
of proving any fact which is especially within the knowledge of any
person, upon such person. In the case of State of Rajasthan Vs
Kashi Ram (2006) 12 SCC 254, Supreme Court, after referring at
various judgements, summarized law on use of Section 106 of the
Evidence Act in criminal trial as under:-

“23. It is not necessary to multiply with authorities. The
principle is well settled. The provisions of Section 106 of
the Evidence Act itself are unambiguous and categoric in
laying down that when any fact is especially within the
knowledge of a person, the burden of proving that fact is
upon him. Thus, if a person is last seen with the
deceased, he must offer an explanation as to how and
when he parted company. He must furnish an explanation
which appears to the court to be probable and
satisfactory. If he does so he must be held to have
discharged his burden. If he fails to offer an explanation
on the basis of facts within his special knowledge, he fails
to discharge the burden cast upon him by Section 106 of
the Evidence Act. In a case resting on circumstantial
evidence if the accused fails to offer a reasonable
explanation in discharge of the burden placed on him,
that itself provides an additional link in the chain of
circumstances proved against him. Section 106 does not
shift the burden of proof in a criminal trial, which is

Crl.A. 778/2012 Page 7
always upon the prosecution. It lays down the rule that
when the accused does not throw any light upon facts
which are specially within his knowledge and which
could not support any theory or hypothesis compatible
with his innocence, the court can consider his failure to
adduce any explanation, as an additional link which
completes the chain. The principle has been succinctly
stated in Naina Mohd., [Re AIR 1960 Madras 218]”.

14. In the case of State of Rajasthan Vs Parthu (2007) 12 SCC
754 Supreme Court again reiterated that:-

“14. In the absence of sufficient or cogent explanations in that
behalf the court would be entitled to consider the same as the
circumstances against the accused. [(See Raj Kumar Prasad
Tamarkar v. State of Bihar) 2007(10) SCC 433]

15. This Court in a large number of decisions in a case of this
nature had also applied the principles of Section 106 of the
Evidence Act. [(See State of Rajasthan v.Kashi Ram [(2006) 12
SCC 254 : (2007) 1 SCC (Cri) 688 : (2006) 11 Scale 440] and
State of Punjab v. Karnail Singh) (2003) 11 SCC 271″]

15. In the case of Trimukh Maroti Kirkan Vs State of
Maharashtra (2006) 10 SCC 681 Supreme Court held that:-

“21. In a case based on circumstantial evidence where no
eyewitness account is available, there is another principle of
law which must be kept in mind. The principle is that when an
incriminating circumstance is put to the accused and the said
accused either offers no explanation or offers an explanation
which is found to be untrue, then the same becomes an
additional link in the chain of circumstances to make it
complete. This view has been taken in a catena of decisions of
this Court. [See State of T.N. v. Rajendran (SCC para 6);
State of U.P. v. Dr. Ravindra Prakash Mittal (SCC para
39:AIR para 40); State of Maharashtra v. Suresh (SCC para

Crl.A. 778/2012 Page 8

27); Ganesh Lal v. State of Rajasthan (SCC para 15) and
Gulab Chand v. State of M.P. (SCC para 4).]

22. Where an accused is alleged to have committed the
murder of his wife and the prosecution succeeds in leading
evidence to show that shortly before the commission of crime
they were seen together or the offence takes place in the
dwelling home where the husband also normally resided, it
has been consistently held that if the accused does not offer
any explanation how the wife received injuries or offers an
explanation which is found to be false, it is a strong
circumstance which indicates that he is responsible for
commission of the crime.”

16. Applying the above law to the facts of the present case, as
found above, there was matrimonial discord between the deceased and
the appellant; the death of the deceased happened at late hours of the
night in her matrimonial home; the death was not on account of
natural causes; the Appellant was present in the matrimonial home at
the time of death, it was incumbent upon the appellant to have
rendered a sufficient and cogent explanation regarding the cause of
death of the deceased. In his statement recorded under Section 313
C.r.P.C, he offers no such explanation and therefore, we find that the
prosecution has been able to prove all links in the chain of
circumstances that lead to the finding of guilt of the appellant to have
caused death of the deceased by strangulating her.

17. The contention of the counsel of the appellant that motive has
not been proved by the prosecution, in view of our above finding,
would not be of much relevance. It is no longer res integra that mere
absence or lack of proof of motive does not lead to inference that the
accused is innocent. In any case, as held by us above, there was

Crl.A. 778/2012 Page 9
evidence of disharmony in the marriage of the appellant and the
deceased which has been proved by the prosecution.

18. The submission of the learned counsel for the appellant with
respect to the recovery of the wire equally cannot come to the aid of
the appellant. HC Maha Singh (PW-21) has deposed about the
disclosure statement made by the appellant (Ex.PW-21/C) as also the
recovery of the wire from the roof of his House/Jhuggi. In his cross
examination, he stated that though the IO had requested some public
persons, including ladies, to join the investigation but none agreed.
Inspector Jagpal Singh (PW-24) is the Investigating Officer. He also
stated about the recovery of the wire at the instance of the appellant.
In his cross examination, a suggestion was put to him that the piece of
wire (Ex.PW-24/P1) is not the same wire with which the death of the
deceased was caused. He denied the said suggestion. Another
suggestion was put to him that the deceased hanged herself with the
help of a different piece of wire. This was also denied by him. The
testimony of PW-21 and PW-24 regarding the disclosure statement on
the recovery of the wire at the instance of the appellant could not be
shaken in the cross examination. It is also of some significance that
the Post Mortem Report gives the dimension of the injury found on
the neck of the deceased as measuring 15cm in length and 0.25cm in
width. Dr. G.A.Sunil Kumar Sharma (PW-13) has given an opinion
as to the possibility of said injury being caused by the wire so
recovered. The recovery of the wire at the instance of the appellant is
therefore an important circumstance against the appellant.

Crl.A. 778/2012 Page 10

19. In view of the discussion aforesaid, this Court finds no error in
the impugned judgement convicting the appellant Birju Kumar
Paswan for offence punishable under Section 302 IPC or the order of
sentence.

20. The appeal is accordingly dismissed.

21. Copy of the order be sent to Tihar Jail for updating of records
and intimation to the appellant. Trial Court Record be sent back.

NAVIN CHAWLA, J

MUKTA GUPTA, J

NOVEMBER 25, 2017
nk

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