SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Savitri Devi vs State on 24 April, 2018

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
4, 6 7
+ CRL.A.188 /2018 Crl.M.B.286/2018
SAVITRI DEVI …..Appellant
Through: Mr. Adit S. Pujari and Ms. Surabhi Dhar,
Advocates

versus

STATE ….Respondent
Through: Mr Hirein Sharma, APP for the State

+ CRL.A.1106 /2017
PAWAN SHARMA …..Appellant
Through: Mr. Chetan Lokur with Mr Nitish
Chaudhary, Advocates

versus

STATE ….Respondent
Through: Mr Hirein Sharma, APP for the State

+ CRL.A.59 /2018
SUDHIR SHARMA …..Appellant
Through: Mr. Chetan Lokur with Mr Nitish
Chaudhary, Advocates

versus

STATE ….Respondent
Through: Mr. Hirein Sharma, APP for the State

Crl.A.188/2018 connected appeals Page 1 of 25
CORAM: JUSTICE S. MURALIDHAR
JUSTICE I.S. MEHTA

JUDGMENT
% 24.04.2018
Dr. S. Muralidhar, J.:

1. These three appeals are directed against the impugned judgment dated
28th November, 2016 passed by the learned District Sessions Judge (East),
Karkardooma Courts, Delhi („DSJ‟) in Sessions Case No.483/2016 arising
out of an FIR No.271/2013 registered at Police Station („PS‟) Mandawali,
convicting the Appellants for the offence under Section 302/34 of the Indian
Penal Code („
IPC‟) and the order on sentence dated 26 th December, 2016
whereby each of the Appellants was sentenced to undergo imprisonment for
life with a fine of Rs.10,000/- each; and in default of payment of fine, to
further undergo simple imprisonment („SI‟) for six months.

The charges

2. The charge framed against each of the Appellants was that between 27th
June, 2012 and 10th May, 2013 at House No.357A, Top Floor, Pandit
Mohalla, Mandawali, Delhi the three of them i.e. Pawan Sharma (Appellant
in Crl. Appeal. No.1106/2017) (Accused No.1: „A-1‟); Smt. Savitri Devi,
mother of A-1, (Appellant in Crl. Appeal. No. 188/2018) („A-2‟); and Sudhir
Sharma, the brother of A-1 (Appellant in Crl. Appeal. No.59/2018) („A-3‟)
in furtherance of their common intention subjected the deceased Poonam
Sharma, wife of A-1, to cruelty for or in connection with the demand of
dowry and thereby committed an offence punishable under
Section 498A
read with
Section 34 IPC.

Crl.A.188/2018 connected appeals Page 2 of 25

3. The second charge was that the three accused in furtherance of their
common intention harassed and tortured the deceased in connection with the
demand of dowry to such an extent that she died on 10 th May, 2013 within
seven years of marriage and thereby the three accused committed the
offence of dowry death punishable under
Section 304-B IPC read with
Section 34 IPC.

4. The third and the alternative charge was that the three accused in
furtherance of their common intention murdered Poonam Sharma on 10th
May, 2013 and thereby committed the offence punishable under
Section 302
IPC read with
Section 34 IPC.

Background facts

5. A-1 married the deceased on 27th June, 2012. According to Dev Narayan
Pandey (PW-2) (the father of the deceased), they had given sufficient dowry
in cash and household articles at the time of marriage. The case of the
prosecution was that after the marriage was solemnized, the accused started
subjecting the deceased to mental and physical harassment; pressurizing her
to bring dowry. However, it must be noticed that this part of the case of the
prosecution has been disbelieved by the trial Court. The Appellants have
been acquitted of the offences both under
Section 498A as well as Section
304-B IPC. The State has also not filed an appeal against the said acquittal.

6. Consequently the Court proceeds to narrate the case of the prosecution
only so far as it is relevant for the offence punishable under
Section 302 read
with
Section 34 IPC.

Crl.A.188/2018 connected appeals Page 3 of 25

Version of PW-7

7. For this purpose, what is relevant to note is that according to Smt. Lata
Dubey (PW-7), the elder sister of the deceased, on 19 th April, 2013, the
deceased had come to her house and stated that she had been beaten by the
accused persons for dowry. PW-7 further stated that the deceased generally
used to come to her residence when she was given a beating or was
subjected to any physical or mental cruelty. At that time, the father and
brother of PW-7 were not available in Delhi, therefore, the deceased stayed
with her for 2-3 days.

8. According to PW-7, on 20th April, 2013 at about 9.30 pm, A-1 came to
her house to take the deceased back with him. After sometime, A-2 and A-3
also reached there. All three accused started quarrelling with the deceased
and they also abused the family members and the neighbours of PW-7. In
the meanwhile, Suresh Kumar Dubey (PW-9) (husband of PW-7) also
reached there. The three accused quarrelled with him as well. This resulted
in PW-7 and PW-9 calling the police. The police then reached there and all
the three accused were taken to the PS. The complainants also reached the
PS. According to PW-7, during the quarrel, A-3 had criminally intimidated
the deceased that they would murder her. After reaching the PS, according
to PW-7, the accused stated that „they were sorry‟ and the matter was
settled. They claimed that they would not indulge in such activities again
and on their assurances, PW-7 and PW-9 sent the deceased back with them.
The above narration concerning the events of 20th April 2013 is corroborated
by PW-9.

Crl.A.188/2018 connected appeals Page 4 of 25

9. According to PW-7 on 9th May 2013 at 2.30 pm, she received a missed
call from the deceased, who at that time was staying at her matrimonial
home. The next day i.e. 10th May, 2013 at around 4.45 am, PW-7 called the
deceased who told her that three accused had been beating her and
subjecting her to torture and that she was not feeling well. The deceased
asked PW-7 to visit her. At around 7.45 am, the deceased again called PW-7
and repeated her request. At around 9 am on 10 th May, 2013, PW-7 is
supposed to have visited the matrimonial home of the deceased. She found
the deceased in an injured condition and not even in a position to speak. At
that time A-2 and A-3 were present in the house. PW-7 learnt that A-1 had
gone to the parental house of the deceased at the time. When PW-7 tried to
reason with A-2 and A-3, they became offensive. PW-7 then returned to her
house. After about two hours, she received a call from her brother stating
that the deceased had expired. The parents of the deceased and PW-7 were
called to the mortuary.

The arrival of the police

10. The evidence of Sub Inspector („SI‟) Vijay Kumar (PW-20), who was
posted at PS Mandawali, was to the effect that at around 11.30 am,
information was received at the PS by way of DD No.17A that the deceased
had been “admitted to the hospital by her husband Pawan Sharma, in dead
condition.” On receiving information, PW-20 along with Constable („Ct.‟)
Rajpal reached the LBS Hospital and found the deceased dead in the
emergency ward. They collected her MLC (Ex.PW3/A) which showed that
the deceased had been brought there by A-1 at 11.35 am with the alleged

Crl.A.188/2018 connected appeals Page 5 of 25
history of „found still at home‟. However, she was brought dead.

11. PW-20 found A-1 present at the hospital. Subsequently, Inspector
Ravinder Kumar (PW-21), the Station House Officer („SHO‟) of PS
Mandawali also reached the hospital. Satish Pandey (PW-5), the younger
brother of the deceased, also reached the hospital and informed their other
family members. The crime team officials also came to the hospital and took
the photographs of the deceased. By that time, A-2 had also reached the
hospital.

12. In his initial statement to the police made at the hospital, PW-2 stated
that the husband and in-laws of the deceased had subjected her (deceased) to
torture. On this basis, both A-1 and A-2 were detained by the police.

13. According to the Investigating Officer („IO‟), Inspector Daya Sagar
(PW-26), he was given the rukka and copy of the FIR at around 4.45 pm on
10th May 2013 and he took over the investigation from PW-20 who apprised
him about what had happened till that point. PW-26 then interrogated both
A-1 and A-2, who made disclosure statements and were arrested. The
personal search of both the accused was also conducted. A-2 was left behind
in the PS with Woman Ct. Rupa. PW-26 then reached the spot along with A-
1, PW-20 and Ct. Ram Singh (PW-16) and prepared a rough site plan at the
pointing out of PW-20. A1 is supposed to have pointed out the room inside
which all the three accused gave the deceased beatings and strangulated her.

Post mortem

14. The post-mortem of the deceased was conducted by Dr. Vinay Kumar

Crl.A.188/2018 connected appeals Page 6 of 25
Singh (PW-13), who found the following external injuries on the deceased:

“1.Injury No.l Multiple Crecentric abrasion present over left side of
neck and mandibular area of size 3 x 2.2 cm, 1.4 c.m. Above from
mandible and 2.2×2.2cm, 1.8cm from left ear, 1.5x.2 c.m, 4 c.m.
Below from the mandible, .4x.3 c.m., 6 cm below from the mandible,
.4x.2 c.m., 8 c.m. below the mandible, 1×3 c.m., 1 c.m. From the mid
line of clavicle, .3x.l cm, 4cm from the clavicle, .8x.3 cm, 2 c.m.,
above from the clavicle,

2. Multiple crecentric abrasion present over right side of the neck and
mandibular area of size .8x.3 c.m., 3.5cm from the mandible, l x.2 cm,
3.6 cm from the mandible, 1.1 x.2 cm, 3.8 cm from the mandible,
1.5x.2 c.m., 4 cm from mandible, 2x.2 cm, 1.5x.08 cm, 7 cm from the
mandible.

3. Contused lacerated wound .5x.3 cm over the inner side of upper
lip.

4. Contused lacerated wound .5x.6 cm over the inner side of the lower
lip.

5. Bilateral sub-conjunctival haemorrhage present.

6. Abrasion over right knee patella region of size .7x.2 cm, 42 cm
from the heel.”

7. Abrasion over left knee area .7x.3 cm, 41cm above the heel.

8. Abrasion over left knee of size 2x 1.4 cm above the heel.”

15. In the uterus, there was a female foetus aged about 4/5 months. On
internal examination it was noted “in neck Effusion of blood present in the
tissues of neck bilaterally underneath injury Nos. l and 2. In lungs, right side
of lung adherent to the chest wall bilateral large multiple petechial

Crl.A.188/2018 connected appeals Page 7 of 25
haemorrhage. Both lungs congested.”

16. The presence of ethyl alcohol. The opinion as to the cause of death was
kept pending for want of chemical analysis of the preserved viscera.
Subsequently, after the receipt of the CFSL report dated 22nd August 2013
(Ex. PW-13/C), PW-13 gave an opinion that the cause of death was
„asphyxia on manual strangulation‟. He further opined: “All injuries were
antemortem in nature. Deceased was under influence of ethyl alcohol 58.7
mg/100 ml of blood. Injuries 1 and 2 collectively sufficient to cause death in
the ordinary course of nature. Homicidal death.” It may be noted that at the
trial, there was virtually no cross-examination of this witness.

17. A-3 surrendered in the Court on 18th May 2013 and was formally
arrested by PW-20. He too is stated to have taken the police to the place of
occurrence and also to have made a disclosure statement.

18. After the conclusion of the investigation, a charge-sheet was filed and by
an order dated 28th September, 2013, charges were framed by the trial Court
against the Appellants in the manner indicated hereinabove.

Statements of the accused

19. The prosecution examined 26 witnesses. In their respective statements
under Section 313 Cr PC, when the incriminating circumstances were put to
them, each of the Appellants denied them and claimed innocence.

20. As far as A-1 is concerned, it is interesting to note that he did not deny
the incident of 20th April, 2013 but gave a different version of what

Crl.A.188/2018 connected appeals Page 8 of 25
transpired on that day. He denied the charge that on that date the three
accused had beaten the deceased in the house of PW-7. His answer reads as
under:

“It is incorrect. In fact, Poonam was adamant and insisting to live
separately from the family of accused and to pressurize for the same,
she had gone to her sister’s house and when accused Savitri Devi went
to bring Poonam back, then Smt. Savitri Devi was beaten by the
Poonam and her sister Lata Dubey at her house and Smt. Savitri Devi
suffered head injuries and police in connivance with Smt. Lata Dubey
and her family members concocted a false story against the accused
persons to save them. The police was called on 100 number by
accused Sudhir from his mobile no. 8595202251 on 20.04.2013 but
police in connivance with Smt. Lata Dubey and her husband made a
false story to save them.”

21. In reply to a further question about the dispute having been settled in the
PS on 20th April, 2013, A-1 stated:

“It is incorrect. The call to the police on 100 number regarding the
assault on accused Savitri Devi by Smt. Lata Dubey and her husband
along with Poonam was made by accused Sudhir by his mobile no.
8595202251 on 20.04.2013. Though, police in connivance with Smt.
Poonam and Lata Dubey and her family took signatures of accused
Pawan and Sudhir and thumb impression of accused Savitri Devi on
blank papers to avoid taking action against injuries sustained by
accused Savitri at the hands of deceased Poonam and her sister’s
family.

22. In relation to the above incident, SI Om Prakash (PW-22) had produced
in the trial Court copies of the DD No.55A registered at PS Mandawali on
20th April, 2013. That DD No.55A pertained to a quarrel at House No.A-
1/14 Jhuggi, Railway Quarters, Mandawali. When PW-22 reached the
house, he came to know that the injured had been taken to PS Mandawali.
At PS, he found the deceased and the three Appellants present. A-2 was

Crl.A.188/2018 connected appeals Page 9 of 25
carrying some injuries on her person. She was taken to the LBS Hospital and
a medical examination was conducted by the doctor. No complaint was
lodged since the parties were related and they settled the matter amicably.
Another DD No.54A pertaining to the same incident had also been lodged.
The attested copies of DD Nos.54A and 55A were marked as Ex.PW22/A
and PW22/B. The statement of the deceased was Ex.PW22/C. The statement
of A-2 and her MLC were marked as Ex.PW22/D and PW22/E respectively.

23. In relation to the above evidence, A-1 claimed that DD Nos. 54A and
55A were false and were fabricated in order to save the deceased and the
family of her sister. According to A-1, the statement of A-2 was fabricated
by the police by procuring her thumb impression on blank papers. However,
he did not deny that A-2 was injured in the incident.

24. Another specific question was regarding A-1 making a call to PW-2 on
10th May, 2013 at 7 am and asking PW-2 to reach the house of A-1.
However, PW-2 asked A-1 to reach the house of PW-2. When PW-2 then
asked A-1 what had happened, A-1 is supposed to have asked PW-2 to take
back the deceased, “otherwise she would be killed”. Thereafter, PW-2 asked
A-1 to drop the deceased at the house of PW-2 on which A-1 is supposed to
have furiously left from there.

25. In response to the above circumstance put to him under Section 313 Cr
PC, A-1 replied as under:

“It is correct as far as call being made by accused Pawan to Sh. Dev
Narain Pandey but all other contents are incorrect. Accused Pawan
had called his father in law Dev Narain Pandey informing about
Poonam who was creating scene and insisting to have separate house
Crl.A.188/2018 connected appeals Page 10 of 25
and thereafter accused Pawan left for his father in law’s house at 7.30
am as Dev Narain Pandey called him to talk about. There was nothing
said about dropping the Poonam to her father’s house by Dev Narain
Pandey nor accused made any threat to kill Poonam if she is not taken
back as alleged.

26. In other words, A-1 did not deny having spoken to PW-2 in the morning
of 10th May, 2013 and thereafter meeting PW-2 in his house at 7.30 am. He
also admitted that a quarrel did take place between the deceased and A-1
regarding her insistence on living in a separate house.

27. According to A-1, A-2 and A-3 were not present at the matrimonial
home of the deceased at 9 am on 10th May, 2013 since A-2 had gone to the
temple of Baba Balaknath, Chander Vihar at 7.30 am and returned only at
9.40 am. A-3 was working as a driver under one Sandeep Khurana at Madhu
Vihar, Delhi. A-1 stated that A-3 had left for the house of his employer at 8
am on 10th May, 2013. When asked whether he had anything else to say, A-1
stated as under:

“The deceased was having love affair with me prior to our marriage
and the marriage was performed in a very simple manner. After
marriage, deceased Poonam regularly insisted and demanded me to
live separately away from my widow mother and unmarried brother
and due to this she used to create scene and quarrelled day to day with
my mother in which her father and other family members used to
instigate her. I along with my family have been falsely implicated in
this case.”

28. As far as A-2 is concerned, she pleaded alibi and stated:

“On the date of incident i.e. 10.05.2013, 1 was not present at my
house since at about 7:30am I had gone to a temple Baba Balak Nath,
Chandra Vihar, and returned back at about 9.30am. I am not aware as
to how the deceased Poonam Sharma had sustained aforesaid injuries.

Crl.A.188/2018 connected appeals Page 11 of 25

However, she was suffering from fits and for that she was on regular
medication and may be on that count she might have sustained
injuries as mentioned above.”

29. A-3 also claimed alibi and stated as under:

“On the date of incident i.e. 10.05.2013, 1 was not present at my
house since at about 8:00am I had gone for my job. I am not aware as
to how the deceased Poonam Sharma had sustained aforesaid injuries.
However, she was suffering from fits and for that she was on regular
medication and may be on that count she might have sustained
injuries as mentioned above.

30. Thus it was claimed that on 10th May, 2013 at the time of the incident,
none of the accused were present in the house and were elsewhere at the
time of occurrence as claimed above.

The impugned judgment of the trial Court

31. The trial Court, as already noted, acquitted the Appellants of the
offences under
Sections 498A and 304-B IPC. However, it concluded that as
far as the offence punishable under
Section 302 IPC was concerned, the
following circumstances were proved beyond reasonable doubt in the
following manner:

(i) The death was homicidal. There was no explanation from the side of the
accused as to how the deceased received the aforementioned eight injuries as
noticed in the post-mortem report, when she was present at her matrimonial
home.

(ii) There was no explanation from the three accused as to how the deceased
came to have consumed liquor. No suggestion was put to PW-13 that it was

Crl.A.188/2018 connected appeals Page 12 of 25
a suicidal death and not homicidal.

(iii) The evidence of PW-7 was trustworthy and reliable and it was
consistent with the injuries mentioned in the post-mortem report. Again, no
explanation was forthcoming from the accused for the said injuries. Neither
the Pujari of Balak Nath Temple nor Sandeep Khurana, the employer of A-3
had been examined in support of their respective plea of alibi. On the
contrary, the testimony of PW-7 regarding the presence of both A-2 and A-3
in their house at the time of her visit and at the time she found the deceased
in an injured condition remained unrebutted.

32. For the aforementioned reasons, the trial Court proceeded to convict the
Appellants for the offence under
Section 302/34 IPC and sentenced them in
the manner indicated hereinbefore.

33. This Court has heard the submissions of Mr. Chetan Lokur and Mr. Adit
S. Pujari, learned counsel appearing for the Appellants and Mr. Hirein
Sharma, learned APP for the State.

Submission of counsel for the Appellants

34. The learned counsel for the Appellants focussed essentially on the
deposition of PW-7 and pointed out that she was an unreliable witness. It is
submitted that it is unusual that despite finding her sister in an injured
condition in the morning on 10 th May, 2013 PW-7 did not inform anyone of
it, left the house while at the same time leaving the deceased behind and
later came to know from her brother about the death of the deceased. It is

Crl.A.188/2018 connected appeals Page 13 of 25
further pointed out that the call detail records (CDR) of the mobile phones of
PW-7 were not collected by the IO. This could have corroborated PW-7‟s
claims about the deceased giving her a missed call on 9th May 2013 and
about her talking to the deceased in the early hours of 10 th May 2013.

35. Attention was also drawn to the confrontation of this witness in cross-
examination which brought out the improvements she made over the
statement initially given by her to the police. It is further submitted that the
incident on 20th April 2013 has been wrongly projected by the prosecution
as an incident in which the accused beat up the deceased and her relatives
whereas it was the other way around. It was A-2 who was injured in the said
incident and the MLC brought forth by PW-22 bore this out.

36. As regards the alibi pleaded by the accused, it is submitted that as far as
A-1 was concerned, he was at the house of his father-in-law on the morning
of 10th May 2013 and this part of his assertion has been confirmed by PW-2
himself. It is submitted that A-1 came back to find that the deceased had
expired and he himself immediately took her dead body to the hospital. As
far as A-2 is concerned, it is pointed out that she was at the Balak Nath
temple from around 7:30 a.m. for around two more hours and she too came
back from the temple to find that the deceased had expired. As far as A-3 is
concerned, he left for work as a driver with Mr. Sandeep Khurana at 8:00
a.m. and, therefore, was not present when the murder took place.

37. Mr. Chetan Lokur, learned counsel for the Appellants, submitted that
with the trial Court having acquitted the Appellants of the offences under

Crl.A.188/2018 connected appeals Page 14 of 25
Sections 498A and 304B IPC, and with the State not having challenged that
acquittal, the case proceeded as one involving the offence punishable under
Section 302 read with Section 34 IPC alone. It was urged that since the
entire case of the prosecution was based essentially on the cruelty and
harassment of the deceased by the Appellants for dowry, and that attempt
failed, the motive for the murder disappeared. Therefore, an important link
in the chain of circumstances did not exist.

Law relating to circumstantial evidence

38. The law regarding circumstantial evidence is fairly well settled and the
duties of the Court in evaluating such evidence have been reiterated on a
number of occasions.
In Mahmood v. State of UP (1976) 1 SCC 542, the
Supreme Court observed as under:

“It is well settled that in a case dependent wholly on
circumstantial evidence, the Court before recording a
conviction on the bias therefore must be firmly satisfied –

(a) that the circumstances from which the inference of guilt
is to be drawn, have fully established by unimpeachable
evidence beyond a shadow of doubt;

(b) that the circumstances are of a determinative tendency
unerringly pointing towards the guilt of the accused; and

(c) that the circumstances, taken collectively, are incapable
of explanation on any reasonable hypothesis save that of
the guilt sought to be proved against him.”

39. The Supreme Court, in Shankarlal Gyarasilal Dixit v. State of
Maharashtra (1981) 2 SCC 35, explained the law thus:

“Since this is a case of circumstantial evidence, it is necessary
to find whether the circumstances on which the prosecution
relies are established by satisfactory evidence, often described
as ‘clear and cogent’ and secondly, whether the circumstances

Crl.A.188/2018 connected appeals Page 15 of 25
are of such a nature as to exclude every other hypothesis save
the one that the appellant is guilty of the offences of which he is
charged. In other words, the circumstances have to be of such a
nature as to be consistent with the sole hypothesis that the
accused is guilty of the crime imputed to him.”

40. In Tanviben Pankaj Kumar Divetia v. State of Gujarat (1997) 7 SCC
156, the Supreme Court reiterated the above position and went on to opine:

“The principle for basing a conviction on the basis of
circumstantial evidence has been indicated in a number of
decisions of this Court and the law is well settled that each and
every incriminating circumstance must be clearly established
by reliable and clinching evidence and the circumstances so
proved must form a chain of events from which the only
irresistible conclusion about the guilt of the accused can be
safely drawn and no other hypothesis against the guilt is
possible. This Court has clearly sounded a note of caution that
in a case depending largely upon circumstantial evidence, there
is always a danger that conjecture or suspicion may take the
place of legal proof. The Court must satisfy itself that various
circumstances in the chain of events have been established
clearly and such completed chain of events must be such as to
rule out a reasonable likelihood of the innocence of the
accused. It has also been indicated that when the important link
goes the chain of circumstances gets snapped and the other
circumstances cannot, in any manner, establish the guilt of the
accused beyond all reasonable doubts. It has been held that the
Court has to be watchful and avoid the danger of allowing the
suspicion to take the place of legal proof for some times,
unconsciously it may happen to be a short step between normal
certainty and legal proof. It has been indicated by this Court
that there is a long mental distance between “may be true” and
must be true” and the same divides conjectures from sure
conclusions.”

41. Reference may also be made to Sudama Pandey v. State of Bihar
(2002) 1 SCC 679 wherein the Supreme Court stated:

Crl.A.188/2018 connected appeals Page 16 of 25

“It is a settled principle that in the case of circumstantial
evidence, the various circumstances should be able to form a
chain pointing to the guilt of the accused. In cases where there
is only circumstantial evidence, the Court has to consider the
evidence adduced by the prosecution and decide whether the
evidence proves particular facts relevant for the purpose of the
case and when such facts are proved the question arises whether
the facts are capable of giving rise to any inference of the guilt
of the accused person or not. An inference of guilt can be
drawn only if the proved fact is wholly consistent with the guilt
of the accused and certainly he is entitled to the benefit of doubt
if the proved fact is consistent with his innocence.”

42. In Gagan Kanojia v. State of Punjab (2006) 13 SCC 516, the Supreme
Court opined:

“9. … Indisputably, charges can be proved on the basis of the
circumstantial evidence, when direct evidence is not available.
It is well settled that in a case based on a circumstantial
evidence, the prosecution must prove that within all human
probabilities, the act must have been done by the accused. It is,
however, necessary for the courts to remember that there is a
long gap between ‘may be true’ and ‘must be true’. Prosecution
case is required to be covered by leading cogent, believable and
credible evidence. Whereas the court must raise a presumption
that the accused is innocent and in the event two views are
possible, one indicating to his guilt of the accused and the other
to his innocence, the defence available to the accused should be
accepted, but at the same time, the court must not reject the
evidence of the prosecution, proceeding on the basis that they
are false, not trustworthy, unreliable and made on flimsy
grounds or only on the basis of surmises and conjectures. The
prosecution case, thus, must be judged in its entirety having
regard to the totality of the circumstances. The approach of the
court should be an integrated one and not truncated or isolated.
The court should use the yardstick of probability and appreciate
the intrinsic value of the evidence brought on records and
analyze and assess the same objectively.

Crl.A.188/2018 connected appeals Page 17 of 25

10. We would proceed on the well-known principles in regard
to appreciation of the circumstantial evidence which were
noticed by the High Court in the following terms:

1) There must be a chain of evidence so far complete as not
to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must
be such as to show that within all human probability the
act must have been done by the accused.

2) Circumstantial evidence can be reasonably made the
basis of an accused person’s conviction if it is of such
character that it is wholly inconsistent with the innocence
of the accused and is consistent only with his guilt.

3) There should be no missing links but it is not that every
one of the links must appear on the surface of the
evidence, since some of these links may only be inferred
from the proven facts.

4) On the availability of two inferences, the one in favour of
the accused must be accepted.

5) It cannot be said that prosecution must meet any and
every hypothesis put forward by the accused however
far-fetched and fanciful it might be. Nor does it mean
that prosecution evidence must be rejected on the
slightest doubt because the law permits rejection if the
doubt is reasonable and not otherwise.”

Proved circumstances

43. The Court would first like to consider those circumstances on which
there is no dispute whatsoever. The first of these is that the deceased died a
homicidal death. It was death on account of injuries suffered by her. It was a
death as a result of manual strangulation. In short, the medical evidence
more than sufficiently establishes that the death was homicidal.

44. The second important circumstance is the presence of the accused in the

Crl.A.188/2018 connected appeals Page 18 of 25
house at the time when the deceased probably died. The post mortem report
indicates that the post mortem took place on 11 th May 2013 at around 2.30
pm. The time since death was indicated as 28 to 30 hours prior to the
examination. This would place it around 10 am on the previous morning i.e.
10th May 2013. Although PW-7 has stated that when she visited the
matrimonial house of the deceased at around 9 am, she found A-2 and A-3
there, the fact remains that it is not in dispute that A-1 and the deceased was
staying together with A-2 and A-3 in the same house. It is not as if A-2 and
A-3 were only visiting A-1 and the deceased, they were all living together.
This is not in dispute whatsoever.

45. What makes this fact even more clear is the statement made by A-1
himself that the quarrel with the deceased was on account of her insisting on
A-1 and her living separately from A-2 and A-3. In fact, the incident of 20 th
April 2013 is a clear indication that there was a quarrel between the
deceased on the one hand and the accused on the other.

46. Therefore, de hors the attempt by the prosecution to show that there was
harassment of the deceased on account of demand of dowry which has been
disbelieved by the trial Court, the evidence on record shows that there were
frequent quarrels between A-1 and the deceased over the abovementioned
issue and such quarrels had happened on 20th April 2013 and even on the
morning of the death of the deceased, i.e. 10th May 2013, as is clear from the
admission of A-1 himself.

47. The answers given by A-1 in the examination under Section 313 Cr PC

Crl.A.188/2018 connected appeals Page 19 of 25
make it clear that he went to the house of his father-in-law, i.e., PW-2 on the
morning of 10th May, 2013 after 7:30 a.m. to inform him about the deceased
“creating scene and insisting to have separate house”. Therefore, it is plain
that prior to 7:30 a.m. itself the quarrel had been going on.

Failed alibi pleas

48. Apart from the fact that A-1was already with the deceased and they were
quarrelling, the circumstance of A-2 and A-3 being present in the house is
more than confirmed from the kind of pleas taken by these two accused to
show to the contrary. As far as A-3 is concerned, his plea is that he left for
work at 8 am. Mr. Adit Pujari, learned counsel for A-2, pointed out that an
application had been filed in the trial Court to examine Mr. Sandeep
Khurana, his employer, as a defence witness in order to prove the alibi
claimed by him. However, the learned amicus curiae appearing for A-3 in
the trial Court appears to have not pressed the application when it was taken
up by the trial Court. Consequently, the plea of alibi could not be proved.
Likewise, it is pointed out that as far as A-2 is concerned, an application was
filed to examine the priest at the Baba Balak Nath Mandir to prove that she
was present there from about 7:30 a.m. till 9:45 a.m. Here again the said
application was not pressed. The net result was that neither A-2 nor A-3
could actually show that they were not present in their house in the morning
hours of 10th May 2013 around the time when the deceased had died.

49. Mr. Pujari stated that they would explore the possibility of filing an
application in these appeals for permission to lead the above evidence to
show that these two accused were not present at the time of the occurrence.

Crl.A.188/2018 connected appeals Page 20 of 25

However, the plea taken by the two Appellants that they were not present
only from around 7:30 a.m. between 9:45 a.m. will not really help them
because on A1‟s own admission, there was already a quarrel happening prior
to 7:30 a.m. The above plea of alibi will, therefore, not help them to show
that they were not the last persons present with the deceased.

Section 106 IEA

50. There is an added difficulty for the Appellants with A-1 having brought
the deceased to the hospital only at 11.35 am on 10th May 2013 as is noted in
the MLC. Therefore, all three accused were bound to explain the
circumstance of the deceased being found dead in their house in which all of
them were living at the time and none of them attempted to offer any
alternative theory of who else could have entered the house and killed the
deceased. That obligation arises as a consequence of the law in relation to
Section 106 of the Indian Evidence Act, 1872 (IEA)

51. In Shambhu Nath Mehra v. State of Ajmer AIR 1956 SC 404, the
Supreme Court explained that
Section 106 of the Evidence Act was not
intended to shift the burden of proof (in respect of a crime) onto the accused
but to take care of a situation where a fact is known only to the accused and
it is difficult for the prosecution to prove that fact. It was held:

“This Section 101 lays down the general rule that in a criminal
case the burden of proof is on the prosecution and Section 106
is certainly not intended to relieve it of that duty. On the
contrary, it is designed to meet certain exceptional cases in
which it would be impossible, or at any rate disproportionately
difficult, for the prosecution to establish facts which are
“especially” within the knowledge of the accused and which he

Crl.A.188/2018 connected appeals Page 21 of 25
could prove without difficulty or inconvenience. The word
“especially” stresses that. It means facts that are pre-eminently
or exceptionally within his knowledge. If the section were to be
interpreted otherwise, it would lead to the very startling
conclusion that in a murder case the burden lies on the accused
to prove that he did not commit the murder because who could
know better than he whether he did or did not.”

52. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC
681, the wife was injured in the dwelling home where the husband ordinarily
resided. The Court held:

“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.”

53. Similarly, in Dnyaneshwar v. State of Maharashtra (2007) 10 SCC
445, the Supreme Court observed:

“It has not been disputed before us that the deceased was
murdered in her matrimonial home. It is not the case of the
appellant that the offence was committed by somebody else. It
is also not his cause that there was a possibility of an outsider to
commit the said offence. One of the circumstances which is
relevant is that when the couple was last seen in a premises to
which an outsider may not have any access. It is for the
husband to explain the ground for unnatural death of his wife.”

54. The Court, therefore, is of the view that even if the evidence of PW-7 is
kept aside entirely, the prosecution having discharged the initial burden of

Crl.A.188/2018 connected appeals Page 22 of 25
showing that the deceased was residing in the same house with the three
accused, it was for the accused to explain how the deceased was found dead
in the house where all of them lived together.

55. The site plan shows that the house was not a very big one. It is not as if
the accused would not have been aware of what was happening to the
deceased inside the house. If indeed A-1 found the deceased dead when he
came back from the house of PW-2, that would have been around 8.15 am.
A-2 returned from the temple around 9.30 am. It could not have taken them
two hours thereafter to take the deceased to the hospital. Therefore, the plea
of alibi put forth by the accused is not believable.

56. In Tulshiram Sahadu Surywanshi v. State of Maharashtra (2012) 10
SCC 373, the Supreme Court made the following observations about an
inference being drawn regarding a fact from the prevailing circumstances:

“It is settled law that presumption of fact is a rule in law of evidence
that a fact otherwise doubtful may be inferred from certain other
proved facts. When inferring the existence of a fact from other set of
proved facts, the Court exercises a process of reasoning and reaches a
logical conclusion as the most probable position. The above position
is strengthened in view of
Section 114 of the Evidence Act, 1872. It
empowers the Court to presume the existence of any fact which it
thinks likely to have happened. In that process, the Courts shall have
regard to the common course of natural events, human conduct, etc. in
addition to the facts of the case. In these circumstances, the principles
embodied in
Section 106 of the Evidence Act can also be utilized. We
make it clear that this Section is not intended to relieve the
prosecution of its burden to prove the guilt of the accused beyond
reasonable doubt, but it would apply to cases where the prosecution
has succeeded in proving facts from which a reasonable inference can
be drawn regarding the existence of certain other facts, unless the

Crl.A.188/2018 connected appeals Page 23 of 25
accused by virtue of his special knowledge regarding such facts,
failed to offer any explanation which might drive the Court to draw a
different inference.”

57. In the considered view of the Court, Section 106 of the Indian Evidence
Act comes into play and not only qua A1. This was a fairly small house
where the three Appellants and the deceased lived in two rooms. Therefore,
it is not A-1 alone who will have to explain the unnatural death of the
deceased in the house, but A-2 and A-3 as well. With each of them putting
forth pleas of alibi which have not been successfully proved by them, the
completed chain of proved circumstances point unerringly only to the guilt
of the three Appellants and no one else.

Conclusion

58. Therefore, apart from the circumstance of the death being homicidal, the
prosecution has also proved that the deceased was indeed with the three
accused just prior to her death. The third circumstance is the failure of the
accused to offer any explanation for the death of the deceased in their house
with no one else being present or having entered the house. The fourth
circumstance of motive is also proved by the fact that there were frequent
quarrels between the accused on the one hand and the deceased on the other
over the insistence of the deceased that she and A-1 should live separately
from A-2 and A-3.

59. The Court is, therefore, satisfied that the prosecution has been able to
bring home the guilt of the three accused beyond all reasonable doubt. The
order of conviction and the order on sentence passed by the trial Court calls

Crl.A.188/2018 connected appeals Page 24 of 25
for no interference.

60. The appeals are accordingly dismissed. The pending applications, if any,
are also dismissed. The trial Court record be returned forthwith along with a
certified copy of this order.

S. MURALIDHAR, J.

I.S. MEHTA, J.

APRIL 24, 2018
rd/ ‘anb’

Crl.A.188/2018 connected appeals Page 25 of 25

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation