When the Accused not denied his signature on the recovery memo or alleged that his signature was obtained by threat, duress or coercion - the absence of any FSL report may at best be considered as Defective Investigation.
The pistol was recovered on the confession of the appellant from under the earth in the
courtyard, the earth was freshly dug. The High Court disbelieved the recovery because the independent witness PW2 went hostile.
But the High Court missed the reasoning by the trial court that PW2 did not deny his signature on the
recovery memo nor did he state that his signature was obtained by threat, duress or coercion. The absence of any FSL report may at best be defective investigation.
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.884 OF 2013
NAWAB ....APPELLANT(S)
VERSUS
STATE OF UTTARAKHAND ...RESPONDENT(S)
J U D G M E N T
NAVIN SINHA, J.
The appellant is aggrieved by his conviction under
Section 302 IPC sentencing him to life imprisonment, and
under Section 25 of the Arms Act for one year.
2. The appellant submitted a written report to the police
that in the night intervening between 24/25.03.2002, at
about 01:30 AM, three hooligans entered his house to abduct
him. His wife was shot dead by the miscreants after a scuffle
when she tried to prevent them from doing so. One firearm
injury was found on the person of the deceased, with an entry
1
and exit wound. On consideration of the evidence, the
appellant was convicted by the trial court and which has been
upheld by the High Court.
3. Dr. Surender Singh Hooda, learned counsel for the
appellant, submitted that the present is a case of
circumstantial evidence. Relying on Sharad Birdhichand
Sarda vs. State of Maharashtra, 1984 (4) SCC 116, it was
submitted that the links in the chain of circumstances had not
been established pointing conclusively towards the guilt of the
appellant alone. Mere suspicion, no matter how strong,
cannot be the basis of conviction. No incriminating
circumstances were put to the appellant under Section 313
Cr.P.C. The High Court has disbelieved the recovery of the
country made pistol on the alleged confession of the appellant
under Section 27 of the Evidence Act, 1872. The conviction of
the appellant is unsustainable and he is entitled to acquittal.
4. Mr. Jatinder Kumar Bhatia, learned counsel appearing
for the State and Mr. Sanjay Kumar Dubey, learned counsel
2
appearing on behalf of the relative of the deceased, whom we
permitted to address us allowing his application for
impleadment, submitted that the motive of the appellant
stands clearly established to obtain the benefit of the Life
Insurance Policy ( LIC) taken few days earlier in the name of
the deceased. The plea of entry by outsiders has been
completely disbelieved in absence of any evidence. The
occurrence having taken place at past midnight when the
appellant was alone at home with the deceased, the onus
shifts on him under Section 106 of the Evidence Act to explain
the circumstances under which his wife met a homicidal
death. The appellant failed to furnish any plausible defence.
5. We have considered the submissions on behalf of the
parties and also perused the evidence on record. The
appellant had taken an LIC policy in the name of his deceased
wife on 23.03.2002, barely few days before the occurrence.
PW4, brother of the deceased, deposed that they reached at
six in the morning after being informed of the death of his
sister by others and not the appellant. The mother of the
3
deceased PW6 deposed that the appellant was greedy for
money and prior to the occurrence he had demanded
Rs.10,000 from the witness.
6. The appellant initially stated in the FIR that three
persons entered his house at midnight to abduct him. In his
evidence as DW1 he stated that there were five persons. If the
intruders had come to abduct the appellant and his wife had
been shot dead after she tried to prevent his abduction, it
would have been all the more convenient for the intruders to
take the appellant away with them. No explanation has been
furnished by the appellant in this regard. The appellant has
not mentioned any reason or named any on suspicion of
enmity or otherwise why the intruders wished to abduct him.
No details of the physical features and approximate age,
height, built of the intruders has been mentioned even if they
had their faces covered despite the fact that the spot map
proved by PW9 and PW13 establishes the light of an electric
bulb. The appellant initially took the defence that he
suspected his wife of having an illicit relationship. The defence
4
of unknown intruders having entered by scaling the northern
side wall built of mud and cement is belied by the spot map
and evidence that no damage or marks were found on the wall.
Not a single brick was found disturbed and neither were there
any foot marks in the muddy courtyard of the house. We see
no reason to differ with the conclusion of the Trial Judge that
there ought to have been some marks or signs of scaling the
wall, if not shifting of bricks especially when three to five
persons are said to have done so.
7. In his defence under Section 313 Cr.P.C., the appellant
stated that he had made a complaint against the police to the
superintendent of police and that is why he had been falsely
implicated. But no evidence was laid much less copy
furnished of any such complaint. A bald statement was made
that he has been falsely implicated at the behest of his
motherinlaw and fatherinlaw in collusion with department
officials.
8. The appellant as DW1 stated that villagers came to his
house when he raised hue and cry after the occurrence. He
5
has further deposed that eight to ten persons had gone with
him to the police station. But the appellant apart from himself
did not lead any independent defence evidence. The mere fact
of broken bangles or a thumb injury on the deceased is not
sufficient to absolve the appellant in view of the nature of the
other evidence against him. We find it very difficult to accept
the explanation of the appellant that despite the presence of
five persons, when one of them could have easily over powered
the lady, there was any need for them to shoot her as an
obstruction in the abduction of the appellant. We have gone
through the statement of the appellant under Section 313
Cr.P.C. and find that all relevant questions were put to him
including from the spot map.
9. The wife of the appellant met a homicidal death in her
own house past mid night when the appellant was alone with
her. His defence has completely been disbelieved with regard
to the intruders and we find no reason not to uphold the
same. The prosecution had therefore established a prima facie
case and the onus shifted to the appellant under Section 106
6
of the Evidence Act,1872 to explain the circumstances how his
wife met a homicidal death. The appellant failed to furnish any
plausible defence and on the contrary tried to lead false
evidence which is an additional aggravating factor against
him.
10. In Trimukh Maroti Kirkan vs. State of Maharashtra,
(2006) 10 SCC 681, it was observed as follows :
“14. If an offence takes place inside the privacy
of a house and in such circumstances where
the assailants have all the opportunity to plan
and commit the offence at the time and in
circumstances of their choice, it will be
extremely difficult for the prosecution to lead
evidence to establish the guilt of the accused if
the strict principle of circumstantial evidence,
as noticed above, is insisted upon by the
courts. A judge does not preside over a
criminal trial merely to see that no innocent
man is punished. A judge also presides to see
that a guilty man does not escape. Both are
public duties. The law does not enjoin a duty
on the prosecution to lead evidence of such
character which is almost impossible to be led
or at any rate extremely difficult to be led. The
duty on the prosecution is to lead such
evidence which it is capable of leading, having
regard to the facts and circumstances of the
case. Here it is necessary to keep in mind
Section 106 of the Evidence Act which says
that when any fact is especially within the
7
knowledge of any person, the burden of proving
that fact is upon him….
15. Where an offence like murder is committed
in secrecy inside a house, the initial burden to
establish the case would undoubtedly be upon
the prosecution, but the nature and amount of
evidence to be led by it to establish the charge
cannot be of the same degree as is required in
other cases of circumstantial evidence. The
burden would be of a comparatively lighter
character. In view of Section 106 of the
Evidence Act there will be a corresponding
burden on the inmates of the house to give a
cogent explanation as to how the crime was
committed. The inmates of the house cannot
get away by simply keeping quiet and offering
no explanation on the supposed premise that
the burden to establish its case lies entirely
upon the prosecution and there is no duty at
all on an accused to offer any explanation."
11. The deceased had only one entry and exit wound. The
bullet apparently exited her body and thus the likelihood of its
recovery from the place of occurrence with the round end
damaged after it was fired. The pistol was recovered on the
confession of the appellant from under the earth in the
courtyard, the earth was freshly dug. The High Court
disbelieved the recovery because the independent witness PW2 went hostile. But the High Court missed the reasoning by
8
the trial court that PW2 did not deny his signature on the
recovery memo nor did he state that his signature was
obtained by threat, duress or coercion. The absence of any
FSL report may at best be defective investigation.
12. We find no reason to interfere with the conviction of the
appellant. All the links in the chain of circumstances point to
the guilt of the appellant alone. The appeal is dismissed.
…………...................J.
[ASHOK BHUSHAN]
…………...................J.
[NAVIN SINHA]
NEW DELHI;
JANUARY 22, 2020
9
The pistol was recovered on the confession of the appellant from under the earth in the
courtyard, the earth was freshly dug. The High Court disbelieved the recovery because the independent witness PW2 went hostile.
But the High Court missed the reasoning by the trial court that PW2 did not deny his signature on the
recovery memo nor did he state that his signature was obtained by threat, duress or coercion. The absence of any FSL report may at best be defective investigation.
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.884 OF 2013
NAWAB ....APPELLANT(S)
VERSUS
STATE OF UTTARAKHAND ...RESPONDENT(S)
J U D G M E N T
NAVIN SINHA, J.
The appellant is aggrieved by his conviction under
Section 302 IPC sentencing him to life imprisonment, and
under Section 25 of the Arms Act for one year.
2. The appellant submitted a written report to the police
that in the night intervening between 24/25.03.2002, at
about 01:30 AM, three hooligans entered his house to abduct
him. His wife was shot dead by the miscreants after a scuffle
when she tried to prevent them from doing so. One firearm
injury was found on the person of the deceased, with an entry
1
and exit wound. On consideration of the evidence, the
appellant was convicted by the trial court and which has been
upheld by the High Court.
3. Dr. Surender Singh Hooda, learned counsel for the
appellant, submitted that the present is a case of
circumstantial evidence. Relying on Sharad Birdhichand
Sarda vs. State of Maharashtra, 1984 (4) SCC 116, it was
submitted that the links in the chain of circumstances had not
been established pointing conclusively towards the guilt of the
appellant alone. Mere suspicion, no matter how strong,
cannot be the basis of conviction. No incriminating
circumstances were put to the appellant under Section 313
Cr.P.C. The High Court has disbelieved the recovery of the
country made pistol on the alleged confession of the appellant
under Section 27 of the Evidence Act, 1872. The conviction of
the appellant is unsustainable and he is entitled to acquittal.
4. Mr. Jatinder Kumar Bhatia, learned counsel appearing
for the State and Mr. Sanjay Kumar Dubey, learned counsel
2
appearing on behalf of the relative of the deceased, whom we
permitted to address us allowing his application for
impleadment, submitted that the motive of the appellant
stands clearly established to obtain the benefit of the Life
Insurance Policy ( LIC) taken few days earlier in the name of
the deceased. The plea of entry by outsiders has been
completely disbelieved in absence of any evidence. The
occurrence having taken place at past midnight when the
appellant was alone at home with the deceased, the onus
shifts on him under Section 106 of the Evidence Act to explain
the circumstances under which his wife met a homicidal
death. The appellant failed to furnish any plausible defence.
5. We have considered the submissions on behalf of the
parties and also perused the evidence on record. The
appellant had taken an LIC policy in the name of his deceased
wife on 23.03.2002, barely few days before the occurrence.
PW4, brother of the deceased, deposed that they reached at
six in the morning after being informed of the death of his
sister by others and not the appellant. The mother of the
3
deceased PW6 deposed that the appellant was greedy for
money and prior to the occurrence he had demanded
Rs.10,000 from the witness.
6. The appellant initially stated in the FIR that three
persons entered his house at midnight to abduct him. In his
evidence as DW1 he stated that there were five persons. If the
intruders had come to abduct the appellant and his wife had
been shot dead after she tried to prevent his abduction, it
would have been all the more convenient for the intruders to
take the appellant away with them. No explanation has been
furnished by the appellant in this regard. The appellant has
not mentioned any reason or named any on suspicion of
enmity or otherwise why the intruders wished to abduct him.
No details of the physical features and approximate age,
height, built of the intruders has been mentioned even if they
had their faces covered despite the fact that the spot map
proved by PW9 and PW13 establishes the light of an electric
bulb. The appellant initially took the defence that he
suspected his wife of having an illicit relationship. The defence
4
of unknown intruders having entered by scaling the northern
side wall built of mud and cement is belied by the spot map
and evidence that no damage or marks were found on the wall.
Not a single brick was found disturbed and neither were there
any foot marks in the muddy courtyard of the house. We see
no reason to differ with the conclusion of the Trial Judge that
there ought to have been some marks or signs of scaling the
wall, if not shifting of bricks especially when three to five
persons are said to have done so.
7. In his defence under Section 313 Cr.P.C., the appellant
stated that he had made a complaint against the police to the
superintendent of police and that is why he had been falsely
implicated. But no evidence was laid much less copy
furnished of any such complaint. A bald statement was made
that he has been falsely implicated at the behest of his
motherinlaw and fatherinlaw in collusion with department
officials.
8. The appellant as DW1 stated that villagers came to his
house when he raised hue and cry after the occurrence. He
5
has further deposed that eight to ten persons had gone with
him to the police station. But the appellant apart from himself
did not lead any independent defence evidence. The mere fact
of broken bangles or a thumb injury on the deceased is not
sufficient to absolve the appellant in view of the nature of the
other evidence against him. We find it very difficult to accept
the explanation of the appellant that despite the presence of
five persons, when one of them could have easily over powered
the lady, there was any need for them to shoot her as an
obstruction in the abduction of the appellant. We have gone
through the statement of the appellant under Section 313
Cr.P.C. and find that all relevant questions were put to him
including from the spot map.
9. The wife of the appellant met a homicidal death in her
own house past mid night when the appellant was alone with
her. His defence has completely been disbelieved with regard
to the intruders and we find no reason not to uphold the
same. The prosecution had therefore established a prima facie
case and the onus shifted to the appellant under Section 106
6
of the Evidence Act,1872 to explain the circumstances how his
wife met a homicidal death. The appellant failed to furnish any
plausible defence and on the contrary tried to lead false
evidence which is an additional aggravating factor against
him.
10. In Trimukh Maroti Kirkan vs. State of Maharashtra,
(2006) 10 SCC 681, it was observed as follows :
“14. If an offence takes place inside the privacy
of a house and in such circumstances where
the assailants have all the opportunity to plan
and commit the offence at the time and in
circumstances of their choice, it will be
extremely difficult for the prosecution to lead
evidence to establish the guilt of the accused if
the strict principle of circumstantial evidence,
as noticed above, is insisted upon by the
courts. A judge does not preside over a
criminal trial merely to see that no innocent
man is punished. A judge also presides to see
that a guilty man does not escape. Both are
public duties. The law does not enjoin a duty
on the prosecution to lead evidence of such
character which is almost impossible to be led
or at any rate extremely difficult to be led. The
duty on the prosecution is to lead such
evidence which it is capable of leading, having
regard to the facts and circumstances of the
case. Here it is necessary to keep in mind
Section 106 of the Evidence Act which says
that when any fact is especially within the
7
knowledge of any person, the burden of proving
that fact is upon him….
15. Where an offence like murder is committed
in secrecy inside a house, the initial burden to
establish the case would undoubtedly be upon
the prosecution, but the nature and amount of
evidence to be led by it to establish the charge
cannot be of the same degree as is required in
other cases of circumstantial evidence. The
burden would be of a comparatively lighter
character. In view of Section 106 of the
Evidence Act there will be a corresponding
burden on the inmates of the house to give a
cogent explanation as to how the crime was
committed. The inmates of the house cannot
get away by simply keeping quiet and offering
no explanation on the supposed premise that
the burden to establish its case lies entirely
upon the prosecution and there is no duty at
all on an accused to offer any explanation."
11. The deceased had only one entry and exit wound. The
bullet apparently exited her body and thus the likelihood of its
recovery from the place of occurrence with the round end
damaged after it was fired. The pistol was recovered on the
confession of the appellant from under the earth in the
courtyard, the earth was freshly dug. The High Court
disbelieved the recovery because the independent witness PW2 went hostile. But the High Court missed the reasoning by
8
the trial court that PW2 did not deny his signature on the
recovery memo nor did he state that his signature was
obtained by threat, duress or coercion. The absence of any
FSL report may at best be defective investigation.
12. We find no reason to interfere with the conviction of the
appellant. All the links in the chain of circumstances point to
the guilt of the appellant alone. The appeal is dismissed.
…………...................J.
[ASHOK BHUSHAN]
…………...................J.
[NAVIN SINHA]
NEW DELHI;
JANUARY 22, 2020
9
