Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 524/2014
Judgment reserved on 18.03.2015
Judgment delivered on 13.04.2015
SALIM HUSSAIN …Appellant
Through: Mr. K. Singhal and Mr. Anupam
Singh Yadav, Advocates.
Versus
STATE …Respondent
Through: Mr. Feroz Khan Ghazi, APP for
State
CORAM:
HON’BLE MR. JUSTICE G.S. SISTANI
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J.
1. Present appeal filed by the appellant under Section 374 (2) of the
Code of Criminal Procedure, is directed against the impugned
judgment dated 30.10.2013 and order of sentence dated 12.12.2013
passed by the Learned Additional Sessions Judge in Sessions Case
No. 61/2012 imposing sentence of imprisonment for life and a fine
of Rs. 5,00,000/- for the offence punishable under Section 302 read
with Section 120-B of Indian Penal Code and in default of payment
of fine, to further undergo simple imprisonment for three years.
The appellant was also sentenced to undergo rigorous
imprisonment for two years for the offence punishable under
Section 203 of Indian Penal Code.
Crl. Appeal No. 524/2014 Page 1 of 39
2. Brief facts of the case, as noticed by the learned Trial Court, are as
under:
“(i) Accused in this case has been tried for
commission of murder of his accountant Kailash
Chand Sethi. Case of the prosecution, as set out
in the chargesheet is that, on 06.10.2007 on
receipt of DD no. 25-A, at 08:30pm, police
officials namely, Inspector Ganga Singh along
with SI R. D Pandey, ASI Ikramuddin, HC
Devender, Constable Satpal, Constable Ram
Gopal and Constable Brij Lal of Police Station
Greater Kailash, New Delhi reached at the house
of accused situated at N-115, IInd floor, GK-I,
New Delhi. Police found place of occurrence i.e.
house no. N-115, IInd floor, GK-I, locked from
inside. Police broke open the door and found
accused Salim Hussain in an injured condition
and there seemed a gunshot wound on the right
side of his chest. Another person namely, Kailash
Chand Sethi was lying dead and his throat had a
deep injury. Chance prints and other exhibits
were lifted and photographs of the spot were
taken. Videography was conducted and accused
Salim Hussain, the injured was shifted to AIIMS
hospital.
(ii) On 09.10.2007, injured Salim Hussain (accused
herein) was declared fit for statement by the
doctor but he chose not to make any statement to
the police. He gave his statement after
consultation with his counsel and in his presence
only on 11.10.2007. Salim Hussain in his
statement, stated, that on 06.10.2007 at about
06:45 pm, Ms. Nagma and some other persons
namely, Liyakat Ali, Irshad Ahmed, Sadiq,
Matloob Ahmed and Firasat came to his house.
He had a dispute with Irshad and thereafter, he
was hit by Irshad and then, started discussing
business matter. When they were discussing the
business transaction, his accountant-Kailash
Chand Sethi was making call to his mobile from
Crl. Appeal No. 524/2014 Page 2 of 39
his mobile but he did not pick up his call as
Kailash Chand Sethi was called in the morning
and wanted to come to collect tax money but
Sadiq saw at the screen of the phone that Kailash
Chand Sethi was calling. Sadiq and other
persons insisted to call Kailash Chand Sethi and
one of three unknown persons took out gun and
put it on his neck. On this threatening, he called
his accountant Kailash Chand Sethi to come to
his house. Thereafter, according to accused (who
lodged the complaint) those persons ransacked
his house. In the meantime, the doorbell rang.
When he got up to open the door thinking that
Kailash Chand Sethi would have reached, those
persons allegedly put him under threat of gun
and came with him to the door. Accused Salim
Hussain further stated that Kailash Chand Sethi
was drunk. He went to the balcony of his flat
overlooking the main street and called his wife
Parul, who told him that she was near the flat.
Accused asked her not to come as 8-9 persons
had come to his house. He threw the keys after
tying them in a handkerchief, which were picked
up by his wife-Parul and she left. Salim Hussain
further stated that when he was making call from
balcony, he saw Matloob Ahmed, Aizaj Ahmed-
his son in a black colour Quails. There was
another Santro car behind Quails car and
Usman came out of this car and walked to the
stairs to his flat where Babboo was already
standing. On seeing these persons, he
immediately went inside and saw that Nagma
was talking to Abbas Bhai. Thereafter, Nagma
and her father left from his flat. According to the
accused, on gun point, he was asked by Irshad to
sign 15 cheques, which he signed. One of the
three persons asked him to switch on the TV and
then asked to increase it to full volume which he
did. Then, third person brought a mutton
chopper from kitchen and put it on Sethi’s neck.
Salim Hussain stated that he tried to hold the
Crl. Appeal No. 524/2014 Page 3 of 39
hand of third person, who tried to stab him in the
stomach but as he tried to save himself, the knife
was stabbed in his thigh. In the scuffle, knife
dropped from the hand of third person, which
was picked up by him. He tried to hit back the
third person. On which, he fell down and became
unconscious. He came to senses on hearing ring
of his mobile phone and noticed that his
accountant-Kailash Chand Sethi was lying over
him and an almirah was lying over both of them.
He called police at 100 number from his phone.
(iii) Accused Salim Hussain further stated that during
incident, door bell was pressed by his aunty and
when he opened the door a little, at that time,
one person had placed knife on his back. Aunty
asked him to slow down the volume. Case of the
prosecution is that initially, police believed the
story of Salim Hussain. During investigation,
suspects named by accused were thoroughly
questioned and their minute to minute movement
was verified w.e.f 06.10.2007. Mobile call details
and locations of mobile phone of Liyakat and
Firasat were collected and it was established
that all suspects named by accused were present
at their native places i.e. out of Delhi in Bareilly
at UP at the time of incident except suspect
Irshad Ahmed
.
(iv) During investigation, it was found that accused
Salim Hussain named aforesaid persons falsely
as he had to make payment of Rs. 60-70lacs to
those persons and in order to avoid the said
payment, he intentionally falsely named those
persons in his statement to implicate them in the
false case. During investigation, it was revealed
that accused Salim Hussain had a business
dealings with the persons against whom, he
made allegations in his statement and accused
Salim Hussain owed a substantial amount of
money towards all these persons and also owed
Rs. 70,000/- to Kailash Chand Sethi.
Crl. Appeal No. 524/2014 Page 4 of 39
(v) A medical board was constituted to opine about
the nature of injuries sustained by accused Salim
Hussain. Medical Board opined that injuries
found on the body of accused Salim Hussain
could be self-inflicted. Apart from this, FSL
report confirmed that blood found on the clothes
of Kailash Chand Sethi (deceased) also matched
with blood found on the clothes of accused Salim
Hussain. As per FSL report, injuries on the body
of Kailash Chand Sethi (deceased) could be
produced by the recovered knife.
(vi) It is alleged that initially, accused Salim Hussain
tried to mislead the investigation and made
efforts to falsely implicate some persons. It was
revealed that at about 09:30 am on 06.10.2007,
accused Salim Hussain called Kailash Chand
Sethi (deceased) and asked him to come to his
flat in the evening. This fact is corroborated by
the statement of Smt. Kiran Sethi, wife of Kailash
Chand Sethi. It is further the case of prosecution
that the analysis of call details of accused Salim
Hussain showed that he was using his mobile
phone to make and receive calls, whereas, as per
his version of incident, he was under threat of
gun and many persons were present, some were
waiting downstairs and at the same time, he was
being allowed to use his mobile phone from his
balcony. Version of Salim Hussain that Nagma
was calling him on his mobile was not
established. The version of accused Salim
Hussain that he threw the key bunch to Parul
Singh-his wife from the balcony was found not
true. Cell ID chart showed that Parul Singh did
not come to Greater Kailash.
(vii)Case of prosecution is that accused Salim
Hussain along with one Rashid planned and
conspired to kill Kailash Chand Sethi. They cut
the throat of Kailash Chand Sethi and then
accused Salim Hussain managed the knife and
gunshot injuries on his body. He implicated
Nagma and other persons with whom he had
Crl. Appeal No. 524/2014 Page 5 of 39
enmity and owed them money. The fact that he
planned to kill Kailash Chand Sethi is proved by
his conduct on 06.10.2007 as he called SI
Santosh Kumar, Investigation officer of Police
Station Anand Parbat during the day and tried to
create evidence in his favour by telling him that
Nagma was calling him and wanted to come to
his house to settle the case. Accused Salim
Hussain called his lawyer, so that he could also
become a witness that Nagma was planning to
come to his client’s house. It is the case of
prosecution that all the persons against whom
accused Salim Hussain made allegations in his
statement, had no opportunity to be present at
the scene of crime at the time of commission of
murder of Kailash Chand Sethi and it was he,
who committed murder of Kailash Chand Sethi.
Presence of Salim Hussain at House no. N-115,
IInd Floor, Greater Kailash-I on 06.10.2007
along with his accomplice Rashid was proved. It
is stated that accused Salim Hussain along with
his accomplices Rashid and Irshad Ahmed
conspired to kill Kailash Chand Sethi
(deceased).
(viii)On conclusion of investigation, charge sheet
was filed in the Court of Metropolitan
Magistrate on 07.06.2008. Case was committed
to the Court of sessions by Learned Metropolitan
Magistrate on 25.07.2008. On 08.10.2009,
charges u/s 120- B IPC, 302 r/w 120-B IPC and
301/203 IPC were framed against accused to
which he pleaded not guilty and claimed trial.”
3. While arguing the appeal, Mr. K. Singhal learned counsel for the
appellant contended that the impugned judgment passed by the
learned trial court is bad in law as it is based on conjectures and
surmises and not on cogent, clear, credible or unimpeachable
evidence; that the learned counsel for the appellant further
Crl. Appeal No. 524/2014 Page 6 of 39
contended that the Learned Trial Court has overlooked the material
evidence available on record; that the learned trial court has passed
the judgment and order of sentence without properly appreciating
the facts of the case; that the appellant who is the complainant in
the instant case has been falsely implicated by the police due to
faulty investigation; that the case of the prosecution is solely based
on the statement of the appellant recorded under Section 313 of the
Code of Criminal Procedure; that the learned counsel for the
appellant has relied upon the case of State of Maharashtra vs.
Sukhdev Singh AIR 1992 SC 2100, wherein it has been held that :
“49.XXX….“if there is no evidence or circumstance
appearing in the prosecution evidence implicating the
accused with the commission of the crime with which
he is charged, there is nothing for the accused to
explain and hence his examination under Section 313
of the Code would be wholly unnecessary and
improper. In such a situation the accused cannot be
questioned and his answers cannot be used to supply
the gaps left by witnesses in their evidence. In such a
situation counsel for accused No. 5 Jinda strongly
submitted that his examination under Section 313
should be totally discarded and his admissions, if any,
wholly ignored for otherwise it may appear as if he
was trapped by the court. According to him the rules
of fairness demand that such examination should be
left out of consideration and the admissions made in
the course of such examination cannot form the basis
of conviction”.
4. Learned counsel for the appellant further submitted that the
Learned Trial Court has failed to appreciate that there is no
evidence on record to prove the alleged conspiracy between the
appellant and one Rashid (who is absconding) to commit the
Crl. Appeal No. 524/2014 Page 7 of 39
offence, thus the conviction of single accused under Section 120-B
of Indian Penal Code is wholly invalid and erroneous. To support
his contention, the learned counsel for the appellant relied upon the
case of M.G. Aggarwal vs. State of Maharashtra AIR 1963 SC
200, wherein it was held that:
“18. There is another point of law which must be
considered before dealing with the evidence in this
case. The prosecution case against accused No. 1
rests on circumstantial evidence. The main charge
of conspiracy under section 120-B is sought to be
established by the alleged conduct of the
conspirators and so far as accused No. 1 is
concerned, that rests on circumstantial evidence
alone. It is a well established rule in criminal
jurisprudence that circumstantial evidence can be
reasonably made the basis of an accused person's
conviction if it is of such a character that it is wholly
inconsistent with the innocence of the accused and is
consistent only with his guilt. If the circumstances
proved in the case are consistent either with the
innocence of the accused or with his guilt, then the
accused is entitled to the benefit of doubt. There is
no doubt or dispute about this position. But in
applying this principle, it is necessary to distinguish
between facts which may be called primary or basic
on the one hand and inference of facts to be drawn
from them on the other. In regard to the proof of
basic or primary facts the Court has to judge the
evidence in the ordinary way, and in the
appreciation of evidence in respect of the proof of
these basic or primary facts there is no scope for the
application of the doctrine of benefit of doubt. The
Court considers the evidence and decides whether
that evidences proves a particular fact or not. When
it is held that a certain fact is proved, the question
arises whether that fact leads to the inference of
guilt of the accused person or not, and in dealing
with this aspect of the problem, the doctrine of
Crl. Appeal No. 524/2014 Page 8 of 39
benefit of doubt would apply and an inference of
guilt can be drawn only if the proved fact is wholly
inconsistent with the innocence of the accused and is
consistent only with his guilt. It is in the light of this
legal position that the evidence in the present case
has to be appreciated.”
5. Learned counsel for the appellant submitted that the prosecution
has failed to link the appellant with the weapon of offence and also
failed to prove that the said weapon was used to cause injuries on
the body of deceased; that the prosecution has also failed to prove
the injuries on the body of appellant; that the Learned Trial Court
relied upon the second version of the case, wherein the Plea of
Alibi was taken by the persons named by the appellant but no
evidence was adduced by the defence to prove the alibi; that the
Learned Trial Court erred in assuming that the appellant failed to
join the investigation intentionally by extending his stay in AIIMS;
that the appellant remained admitted in AIIMS as he had received
injuries during the scuffle; that the prosecution failed to prove the
gun shot on the chest of the appellant and the gun shot resulted into
Pneumothorax, a condition also known as collapsed lung and that
the injuries were self inflicted by the appellant.
6. Per contra, Mr. Feroz Khan Ghazi, APP for State argued that it has
been established that Nagma (PW-22), Liyakat Ali (PW-4), Irshad
Ali (PW-7), Sadiq (PW-5), Firasat (PW-25), Matloob Ali, Ijaz Ali
and three other unknown persons, named by appellant in his
statement as accused were in Bareilly on the day of incident i.e.
06.10.2007; that PW Nagma, resident of Delhi was not present at
the spot on the day and time of incident; that the appellant
intentionally refused to make his statement to the Investigating
Crl. Appeal No. 524/2014 Page 9 of 39
Officer (PW-63) on 09.10.2007 despite being fit and stated that he
would give his statement only after consultation with his counsel;
that the appellant had minor injuries but stayed in AIIMS for 29
days to delay the investigation; that the appellant concocted an
unconvincing story; that according to the appellant he was shot at
in his house but no neighbour or public witness was examined to
corroborate it; that the appellant also failed to lead any defence
evidence to prove that there was a gunshot in the house; that the
conduct of the appellant was unnatural as he called his wife despite
the threat extended by Nagma (PW-22), Liyakat Ali (PW-4), Irshad
Ali (PW-7), Sadiq (PW-5), Firasat (PW-25), Matloob Ali, Ijaz Ali
and three other unknown persons but failed to inform the police;
that in furtherance of his concocted story he scattered papers in an
unusual manner in the room in which the crime took place with a
design to save himself.
7. We have heard learned counsel for both the parties and considered
their rival submissions.
8. The case presented by the prosecution is that the appellant and one
Rashid (absconding) conspired to kill the deceased Kailash Chand
Sethi with the motive to falsely implicate Nagma (PW-22),
Liyakat Ali (PW-4), Irshad Ali (PW-7), Sadiq (PW-5), Firasat
(PW-25), Matloob Ali, Ijaz Ali and three other unknown persons..
In pursuance of the same, the appellant invited the deceased to his
house, got him drunk and cut his throat with a knife after which the
appellant managed to self inflict the gun shot and knife injuries.
The prosecution puts forth that in order to cultivate the evidence in
his favour, the appellant called SI Santosh Kumar and his lawyer
Crl. Appeal No. 524/2014 Page 10 of 39
on 06.10.2007 and informed them that Nagma wanted to come to
his house to settle the accounts. An extract from the testimony of
SI Santosh (PW-37) is given as under :
“In the month of October, 2007 I was posted as SI at P.
S. Anand Parvat. During those days I was investigating
the case, FIR No. 141/07, under Section 307, P. S.
Anand Parvat in which accused Salim, present in court
and his brother whose names I do not remember were
accused. One Naseem was injured in this case.
On 06/10/2007 at noon time accused Salim Hussain
had called me on my mobile phone having no.
9868554889 from his mobile phone and told me that
Nagma, wife of injured Naseem was making call to him
frequently to comprise the matter and demanding
money on that account. Accused Salim further told me
that the said Nagma would be coming to him in the
evening of same day. I told accused Salim that it was
his personal matter and I have nothing to do with the
same. I was interrogated by the IO of this case in
respect of the said facts. My statement was recorded by
the IO of this case on 10.05.2008”.
9. In order to bring home the guilt of appellant it would be
appropriate to examine the evidence of some of the prosecution
witnesses and the documents placed on record.
Smt. Madhushree Sen Gupta (PW-27) and Ranjan Das (PW-28) did not
see anybody coming or going into the house and unnatural conduct of the
appellant who did not inform police or raised any alarm despite having
an opportunity to do so.
10. Smt. Madhushree Sen Gupta (PW-27) did not see any outsider
coming or going to the flat of the appellant or passing through the
staircase and the appellant did not seek her help or came out or
raised noise or alarm, when he opened the gate at the time when
Crl. Appeal No. 524/2014 Page 11 of 39
she had come and requested him to reduce the volume of the T.V.
PW-27 deposed that :
“ I am resident in aforesaid premises since 1983.
On 6.10.07, at about 7.45 p.m., my husband Sh.
Amitabh Sen Gupta was going out for evening walk.
Lot of noise was coming from the opposite flat i.e. N-
115, IInd Floor, right side, Greater Kailash, Part-I.
My husband asked me to tell the occupants of the
opposite flat to stop the noise. I rang the door bell of
the opposite flat and Mr. Saleem whom I knew as Mr.
Hussain as then I was not knowing his first name, to
stop the noise of music. Mr. Saleem had opened the
door and agreed to stop the music and he closed the
door of the opposite flat immediately. The music was
not stopped. After 10/15 minutes, the police came
knocking at my door and said, “idhar khoon hua hai”.
I was taken aback and I opened the door of my flat for
them to see. Then they said, “Saleem Saleem”. I told
them I do not know Saleem but I know someone by
name of Hussain who stays opposite my flat. The
police asked me to close the door. They were three
police persons. I closed my door. I could hear them
bang open the door of the opposite flat. Nothing more
I know. The accused present in JC is that person
whom I know as Mr. Hussain and later on I came to
know that he is Saleem Hussain.
During the time, I had knocked at the door of the
opposite flat, I had not seen any outside coming or
going to the opposite flat or passing through the
staircase. On 08.10.07, police inquired and recorded
my statement”.
11. Ranjan Das (PW-28), a servant working in the Ground Floor of the
said building, deposed that the wife of the appellant had called him
twice and requested him to check whether anybody is beating her
husband and further deposed that he did not see anybody coming
Crl. Appeal No. 524/2014 Page 12 of 39
or going to the second floor of the said building. An extract of his
deposition is produced below :
“On 06.10.07, I was working as a servant at the guest
house being run by Sh. Virender Chopra at premises
no. N-115, Ground Floor, GK-I, New Delhi. On that
day, a party was going on. It was started at about 6-
6.30 pm. At about 7.30 – 8.00 pm, I received a call
from the wife of the accused, present in the court that
somebody was beating her husband/accused at IInd
Floor whereon she alongwith her husband was
residing. I was further asked to go to IInd Floor and
see what was happening. When I reached Ist floor, I
heard loud sound of TV which was coming from IInd
floor. I did not go to IInd floor and came back to
ground floor. Again I received call of the wife of
accused on my mobile phone. I told the aforesaid
facts to her. I had not seen any person going or
coming back from IInd floor of the building no. N-
115, GK-I. I had not heard or seen any quarrel
taking place that evening. The wife of accused was
having number of my mobile phone as she used to call
me to inquire about maid Munni who used to work in
our guest house as well as in the house of the
accused”.
12. Testimony of both these witnesses proves that Nagma (PW-22),
Liyakat Ali (PW-4), Irshad Ali (PW-7), Sadiq (PW-5), Firasat
(PW-25), Matloob Ali, Ijaz Ali and three other unknown persons
were not present at the place of occurrence and despite having
ample opportunity to raise alarm or call the police, the appellant
did not do so which shows the unnatural conduct of the appellant.
Last Seen
13. Regarding last seen evidence it would be useful to peruse the
depositions of Smt. Kiran Sethi (PW-2), the wife of the deceased
Smt. Kiran Sethi (PW-2) and the Investigating Officer (PW-63).
Crl. Appeal No. 524/2014 Page 13 of 39
Smt. Kiran Sethi (PW-2) in her testimony deposed that the
deceased received a call on his mobile from the appellant asking to
meet him up at 7 pm. The appellant admitted in his statement that
the deceased came to his residence at around 7:30 pm.
14. The Investigating Officer (PW-63) deposed that on 06.10.2007,
pursuant to registration of DD no. 25-A and DD no. 24-A (Ex.PW-
63/A) he reached the place of incident i.e. N-115, Second Floor,
G.K.-I, New Delhi and found the gate of the floor closed and it
appeared that the door was locked from inside and TV was on high
volume or somewhat similar object was being heard from inside
and that the door of the second floor was broke opened and two
persons were lying in an injured condition on the floor in front of
the sofa. He further deposed that he picked up the person who was
lying over the other one whose name was revealed as Salim and he
turned the second person who was lying with his face downwards.
Neck of that person was cut and a blood stained knife was also
found lying on the floor under the body of that person. Some
documents were also found scattered over the sofa set. PW-63 also
deposed that he found one bullet lying on the floor, which had hit
the wall before falling on the floor.
15. Evidence on record shows that the Investigating Officer (PW-63)
along with other police officials on reaching the place of incident
found the appellant in an injured condition and Kailash Chand
Sethi was found dead at the place of incident hence establishing a
fact beyond reasonable doubt that the deceased and appellant were
together alive at the time of alleged incident and that the deceased
was found dead in the house of the appellant. It has been held by
Crl. Appeal No. 524/2014 Page 14 of 39
the Hon’ble Supreme Court in the case of Bodhraj v. State of
Jammu & Kashmir, (2002) 8 SCC 45 , that:
31. The last-seen theory comes into play where the time-
gap between the point of time when the accused and the
deceased were last seen alive and when the deceased is
found dead is so small that possibility of any person
other than the accused being the author of the crime
becomes impossible. It would be difficult in some cases
to positively establish that the deceased was last seen
with the accused when there is a long gap and
possibility of other persons coming in between exists. In
the absence of any other positive evidence to conclude
that the accused and the deceased were last seen
together, it would be hazardous to come to a conclusion
of guilt in those cases. In this case there is positive
evidence that the deceased, A-1 and A-2 were seen
together by witnesses i.e. PWs 14, 15 and 18; in
addition to the evidence of PWs 1 and 2.
Similarly in the case of State of U.P. v. Satish , (2005) 3
SCC 114 , the Apex Court observed that:
“22. The last-seen theory comes into play where the
time-gap between the point of time when the accused
and the deceased were last seen alive and when the
deceased is found dead is so small that possibility of
any person other than the accused being the author of
the crime becomes impossible. It would be difficult in
some cases to positively establish that the deceased
was last seen with the accused when there is a long
gap and possibility of other persons coming in between
exists. In the absence of any other positive evidence to
conclude that the accused and the deceased were last
seen together, it would be hazardous to come to a
conclusion of guilt in those cases. In this case there is
positive evidence that the deceased and the accused
were seen together by witnesses PWs 3 and 5, in
addition to the evidence of PW 2.”
Crl. Appeal No. 524/2014 Page 15 of 39
The above stated view has been further corroborated in the
case of Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006)
10 SCC 172 , wherein it has been held by the Hon’ble Supreme
Court that:
“ 27 . The last-seen theory, furthermore, comes into
play where the time gap between the point of time
when the accused and the deceased were last seen
alive and the deceased is found dead is so small that
possibility of any person other than the accused
being the author of the crime becomes impossible.
Even in such a case the courts should look for some
corroboration.”
Plea of Alibi
16. As per the version of the appellant, 8-9 persons namely, Nagma
(PW-22), Liyakat Ali (PW-4), Irshad Ali (PW-7), Sadiq (PW-5),
Firasat (PW-25), Matloob Ali, Ijaz Ali and three other unknown
persons came to his house and on being threatened by Sadiq (PW-
5) and other persons by putting gun on his neck, the appellant
called up his accountant i.e. deceased Kailash Chand Sethi to come
to his house. Appellant further stated that Nagma (PW-22) and her
father came to his house and on gunpoint forced him to sign 15
cheques, which he signed at the instance of Irshad Ali (PW-7) and
appellant also stated that one of three other unknown persons
placed chopper on the neck of the deceased and when the deceased
tried to get hold of hand of that person, the person tried to stab him
in his stomach. Further the appellant stated that a scuffle took place
and a knife was pushed in his right thigh and then got dropped
from the hand of that unknown person who inflicted the knife blow
and when the appellant picked up the knife to save himself and
Crl. Appeal No. 524/2014 Page 16 of 39
tried to hit the said person, the appellant fell down and became
unconscious. The appellant further stated that he came to senses on
the vibration of his phone and found Kailash Chand Sethi lying
dead over him.
17. To establish the guilt on the part of persons implicated by the
appellant in his statement, brief outline of testimonies of
Prosecution Witnesses are as under:-
First of all, Nagma (PW-22) in her testimony deposed that
on 06.10.2007 she was present at her house for the whole day. On
that day the appellant had not made any call to her. Munna (her
nephew) along with his friend had come to her house at about 5
pm. They prayed ‘Namaz’ and left at about 9 p.m. after ‘Roza
Iftar’. PW-22 further deposed that she had not gone to the house of
appellant on 06.10.2007 and also deposed that she had not called
the appellant for 20-25 days before the date of incident which was
proved by the call detail records of her phone number.
As per Liyakat (PW-4) on 06.10.2007 he was present in
Bareilly and on that day Bareilly police had called him to the
police station in connection with a cheating case and he went to the
police station at about 5 p.m. where SI obtained his signatures on
some documents and thereafter he came back to his house for Roza
Iftar at about 6 p.m. He further deposed that thereafter he
performed prayer in Masjid with his brother and relatives and
performed Tarabi in the Masjid upto 9:30 p.m. and smentioned that
he also met Badrul Islam Imam, Saddik Beg and Yamin Beg at
Masjid.
Crl. Appeal No. 524/2014 Page 17 of 39
As per Firasat (PW-25) on 06.10.2007, he was present at his
house since morning to evening and was doing job of alteration of
sarees and after completion of alteration job he had taken the sarees
to the shop of one Panditji in Bada Bazar, Bareilly for delivery at
around 6:00 p.m. or 6:15 p.m. He further stated that he was present
at the shop of the said Panditji and had opened his fast at the shop
of Panditji by eating Samosa and drinking tea and returned home at
around 8:00 p.m. or 8:30 p.m.
Irshad Ali (PW-7) deposed that on 06.10.2007, Babbu,
Usman, Nawab Ali and Shamshad were with him. It was the
month of Ramzan and he prayed Namaz at 4:00 p.m., 4:30 p.m.
and 8:30 p.m. and they had not left Bareilly. Further Shamshad
(PW-8), Babbu (PW-10) and Usman (PW-9) also deposed on the
same lines of Irshad Ali (PW-7).
Badrul Islam (PW-31) deposed that on 06.10.2007, Liyakat
(PW-4) invited all the namazees for biryani after Maghrib Namaz
as it was the first death anniversary of his grandfather and he also
made an arrangement for Iftar on that day as it was the month of
ramzan. He further deposed that about 100 people including
Liyakat (PW-4) broke their fast together at Masjid and thereafter,
they all had dinner after Maghrib Namaz and also deposed that
Liyakat (PW-4) remained with him in the Masjid from 5:00 p.m. to
9:00 p.m.
18. The prosecution witnesses namely, Naeem (PW-6), Irshad Ali
(PW-7), Shamshad (PW-8), Usman (PW-9), Babbu (PW-10),
Nawab Ali (PW-11), Mohd. Nafees (PW-12), Parvez Khan (PW-
14) and Qumar (PW-15) have deposed that the persons named by
Crl. Appeal No. 524/2014 Page 18 of 39
the appellant i.e. Nagma (PW-22), Liyakat Ali (PW-4), Irshad Ali
(PW-7), Sadiq (PW-5), Firasat (PW-25), Matloob Ali, Ijaz Ali and
three other unknown persons were present in Bareilly on the day of
incident i.e. 06.10.2007.
19. Hence, on scrutiny of evidence, it stands established that Liyakat
Ali (PW-4), Irshad Ali (PW-7), Sadiq (PW-5), Firasat (PW-25),
Matloob Ali, Ijaz Ali and three other unknown persons were not
present in Delhi on the date of incident and had not visited the
residence of the appellant on the said day in the evening hours and
further it cannot be said that Nagma (PW-22) could be the
perpetrator of the crime even though she was present in Delhi on
the day of the incident but her CDR shows that she was located far
from the scene of the crime on that day. In Dudh Nath Pandey vs
State of UP 1981 AIR SC 911 , it has been held that :
“The plea of alibi postulates the physical
impossibility of presence of accused at the scene
of offence by reason of his presence at another
place. The plea can therefore succeed only if it is
shown that the accused was so far away at the
relevant time that he could not be present at the
place where the crime was committed”.
20. Therefore applying the principle laid down in the above case, we
are of the view that the above named persons could not have been
present at the scene of the crime, as they were present elsewhere.
Medical Evidence
21. HC Sita Ram (PW-51) Incharge of PCR Van Eagle-41 along with
Ct. Satbir and driver Surender reached the spot around 8:26 p.m.
on receipt of a call at 08:23 p.m. from PCR to the effect that “8/9
ladke mujhe goli mar ke bhaag gaye”. Door of the flat was found
Crl. Appeal No. 524/2014 Page 19 of 39
locked and the SHO got it forcibly opened with the help of staff
wherein two injured persons were found. He took injured Salim
Hussain to the AIIMS hospital.
22. Dr. Raghvendra Kumar (PW-29) conducted the post-mortem of the
deceased and noted the following injuries in the postmortem report
(Ex.PW-29/A) :-
Injury No.1 - Cut throat wound present over the neck in
front measuring 13 cm in length, 2 cm in breadth, organ
deep, 10 cm below chin and 4 cm above the sternal angle,
clotted blood present around the wound.
Injury No.2 - Incised wound measuring 2.5 cm X 0.4 cm
X skin deep present over right side of neck, 1 c.m. above
injury no. 1, PW-29 opined that the cause of death as
“shock as result of hemorrhage” and opined that injury
no.1 was sufficient to cause death in ordinary course of
nature.
23. Dr. Imtiakum (PW-30), SR Surgery, AIIMS, New Delhi noted the
following injuries on Salim Hussain as per MLC:-
Injury No. 1 - Tattooed dirty in injury 1cm X 1cm X 1 cm
at the sixth inter costal space between mid clavicular line
and anterior axillary line.
Injury No. 2 -Small injury 1cm X 1 cm X 1cm at the
seventh inter costal space at anterior axillary line.
Injury No. 3 -Incised wound at inner right thigh, 2 cm X 2
cm X 2 cm. It was made clear from his statement that
injuries no. 1 and 2 could be gunshot injuries while the
Crl. Appeal No. 524/2014 Page 20 of 39
injury no. 3 could not be a gunshot injury and was likely to
be caused by sharp edged weapon.
24. Dr. Sudhir Gupta (PW-58) opined vide his report Ex.PW58/C
about the possible use of knife seized from the spot in causing the
injuries to the deceased which resulted in death.
25. Medical Board was constituted to opine about the injuries sustained
by the appellant. The report of the medical board has been proved
as Ex.PW34/A.
26. Dr. N. K. Aggarwal (PW-34) stated that he headed the Medical
Board as Chairman and the Members of the board given the
following opinion :-
(i) The patient was admitted on 06.10.2007 and
ICD (inter costal drainage tube) was inserted on
the same day and ICD was removed on
11.10.2007 at 4:00 pm, X-Ray of chest done
post ICD, removal was not showing Haemo -
Pneumothorax. So the patient’s stay in the
hospital after X-Ray chest i.e. from 12.10.2007
to 30.10.2007 was not justified.
(ii) On admission ICD tube was inserted
without any X-Ray chest done. IT was opined
that the reason for putting an ICD tube without
an X-ray chest and normal vital signs was not
justified. Thus no definite opinion regarding
nature of injuries no. 1 and 2 can be given.
Injury no. 3 was simple in nature.
(iii) The injuries could be self-inflicted and there
were only two superficial wounds over the right
side of the chest.
Crl. Appeal No. 524/2014 Page 21 of 39
The injuries found on the body of the appellant could be self-inflicted.
27. Dr. N. K. Aggarwal (PW-34), Member of Board deposed that
injuries could be self inflicted and there were only two superficial
wounds over the right side of the chest. Wound No. 1 was stated to
be having tattooing but it was nowhere mentioned whether these
wounds entered the chest cavity or not. Injury No. 3 was on the
right side of the thigh. Dr. Gulshan Jeet Singh (PW-41) and Dr.
Sone Lal (PW-53) other members of board corroborated the
testimony of PW-34.
28. Medical evidence on record shows that the injuries on the person of
the appellant were superficial in nature and could be self inflicted
and his extended stay w.e.f. 12.10.2007 to 30.10.2007 was not
justified.
29. In view of the above, we are of the opinion that the appellant was
under influence of sedatives or pain killers and was not in a
position to give statement, is not tenable. It needs to be noticed
that the appellant despite being declared fit for statement refused to
make his statement to the Investigating Officer (PW-63) on
09.10.2007 without consulting his legal counsel and also did not
join the investigation.
30. As a matter of fact, the appellant knew that he was the culprit and
wanted to give his statement after consulting a legal person in order
to manipulate his statement and save himself.
Circumstantial Evidence
31. As per the statement of the appellant, the persons named by him
visited his house on the day and time of incident. However there
are no witnesses from the neighbourhood of the appellant who
Crl. Appeal No. 524/2014 Page 22 of 39
have come forward to depose that the said persons visited the flat
of the appellant. Smt. Madhushree Sen Gupta, neighbour of the
appellant (PW-27) and Ranjan Das, servant at the ground floor
(PW-28) clearly deposed in their testimony that they did not see
any person / outsider coming or going to the flat of the appellant or
passing through the staircase of the flat. Hence this proves that the
statement made by the appellant is false and cannot be relied upon.
32. The other plea of the appellant that he was under the threat of gun
has no force as it has emerged on record that during the said
period, he was receiving and making calls from his mobile. The
other plea of the appellant is that his wife had come to take the
keys of the house and he threw the bunch of keys to his wife from
the IInd Floor of the house which is lie as the Cell ID Chart of his
wife’s mobile suggests her location outside Greater Kailash at the
relevant time.
33. Law with regard to the conviction on the basis of circumstantial
evidence has been discussed in detail by the Supreme Court in the
case of Harishchandra Ladaku Thange Vs. State of
Maharashtra, reported at AIR 2007 Supreme Court 2957. It
would be useful to reproduce the relevant paras:-
“8. It has been consistently laid down by this Court
that where a case rests squarely on circumstantial
evidence, the inference of guilt can be justified only
when all the incriminating facts and circumstances
are found to be incompatible with the innocence of
the accused or the guilt of any other person. (See
Hukam Singh V. State of Rajasthan (AIR 1977 SC
1063), Eradu V. State of Hyderabad (AIR 1956 SC
31), Earaohadrappa V. State of Karnataka (AIR
1983 SC 446), State of U.P. V. Sukhbasi & Ors.
(AIR 1985 SC 1224), Balwinder Singh alias Dalbir
Crl. Appeal No. 524/2014 Page 23 of 39
Singh V. State of Punjab (AIR 1987 SC 350) and
Ashok Kumar Chaterjee V. State of M.P. (AIR 1989
SC 1890)). The circumstances from which an
inference as to the guilt of the accused is drawn have
to be proved beyond reasonable doubt and have to be
shown to be closely connected with the principal fact
sought to be inferred from those circumstances. In
Bhagat Ram V. State of Punjab (AIR 1954 SC 621)
it was laid down that where the case depends upon
the conclusion drawn from circumstances the
cumulative effect of the circumstances must be such
as to negative the innocence of the accused and bring
home the offences beyond any reasonable doubt.
9. We may also make a reference to a decision of this
Court in C. Chenga Reddy &Ors. V. State of A.P.
(1996 (10) SCC 193), wherein it has been observed
thus:-
“21. In a case based on circumstantial evidence, the
settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved
and such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete
and there should be no gap left in the chain of
evidence. Further the proved circumstances must be
consistent only with the hypothesis of the guilt of the
accused and totally inconsistent with his innocence.”
10. In Padala Veera Reddy V. State of A.P. (AIR
1990 SC 79) it was laid down that when a case rests
upon circumstantial evidence, such evidence must
satisfy the following tests:
(1) the circumstances from which an inference of guilt
is sought to be drawn, must be cogently and firmly
established;
(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused;
Crl. Appeal No. 524/2014 Page 24 of 39
(3) the circumstances, taken cumulatively, should
form a chain so complete that there is no escape from
the conclusion that within all human probability the
crime was committed by the accused and none else;
and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of guilt
of the accused and such evidence should not only be
consistent with the guilt of the accused but should be
inconsistent with his innocence.”
11. In State of U.P. v. Ashok Kumar Srivastava
(1992 Crl. LJ 1104) it was pointed out that great
care must be taken in evaluating circumstantial
evidence and if the evidence relied on is reasonably
capable of two inferences, the one in favour of the
accused must be accepted. It was also pointed out
that the circumstances relied upon must be found to
have been fully established and the cumulative effect
of all the facts so established must be consistent only
with the hypothesis of guilt.
12. Sir Alfred Wills in his admirable book 'Wills'
Circumstantial Evidence' (Chapter VI) lays down the
following rules specially to be observed in the case of
circumstantial evidence: (1) the facts alleged as the
basis of any legal inference must be clearly proved
and beyond reasonable doubt connected with the
factum probandum; (2) the burden of proof is always
on the party who asserts the existence of any fact,
which infers legal accountability; (3) in all cases,
whether of direct or circumstantial evidence the best
evidence must be adduced which the nature of the
case admits; (4) in order to justify the inference of
guilt, the inculpatory facts must be incompatible with
the innocence of the accused and incapable of
explanation, upon any other reasonable hypothesis
than that of his guilt; and (5) if there be any
Crl. Appeal No. 524/2014 Page 25 of 39
reasonable doubt of the guilt of the accused, he is
entitled as of right to be acquitted.
13. There is no doubt that conviction can be based
solely on circumstantial evidence but it should be
tested by the touchstone of law relating to
circumstantial evidence laid down by this Court as
far back as in 1952.
14. In Hanuman Govind Nargundkar and another
V. State of M.P. , (AIR 1952 SC 343) it was observed
thus:-
“It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is
to be drawn should be in the first instance be fully
established, and all the fact so established should be
consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one
proposed to be proved. In other words, 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.”
15. A reference may be made to a later decision in
Sharad Birdhichand Sarda v. State of Maharashtra
(AIR 1984 SC 1622). Therein, while dealing with
circumstantial evidence, it has been held that the
onus was on the prosecution to prove that the chain
is complete and the infirmity of lacuna in the
prosecution cannot be cured by a false defence or
plea. The conditions precedent in the words of this
Court, before conviction could be based on
circumstantial evidence, must be fully established.
They are:-
Crl. Appeal No. 524/2014 Page 26 of 39
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established. The
circumstances concerned must or should and not may
be established;
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive
nature and tendency;
(4) they should exclude every possible hypothesis
except the one to be proved; and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human probability
the act must have been done by the accused.”
Burden of Proof
34. The prosecution witnesses i.e. Nagma (PW-22), Liyakat Ali (PW-
4), Irshad Ali (PW-7) Sadiq (PW-5) and Firasat (PW-25) have
proved that they were not in Delhi on the day of incident nor
present at the spot of incident.
35. Regarding burden of proof it will be useful to peruse the testimony
of Smt. Kiran Sethi, wife of the deceased (PW-2) who clearly
deposed that on the day of incident, her husband i.e. the deceased
had gone to meet the appellant after receiving his call. Smt. Kiran
Sethi, wife of the deceased (PW-2) deposed that :
“ On 06.10.2007, my husband had come home at about
2-3 pm. After taking meals he took rest for quite
Crl. Appeal No. 524/2014 Page 27 of 39
sometime. Then between 5/6 pm he called Saleem bhai
on his phone telling him that he is not coming to his
office. Saleem told him that he had called him at 7 pm.
My husband started getting ready to visit the office of
Saleem Hussain. He left the home at about 5.30/6 pm.
When I asked him why he is going at 6 pm when he
had been called at 7 pm, he told that he would first go
to Defence Colony, then a Paan shop, then board a bus
and by the time he would reach Saleem’s office it
would be 7 pm. When he left home he told me that he
would be back by 9 pm.
My husband did not come home at 9 pm. I kept on
waiting for him. Then I called him on his mobile
phone. The phone was picked up by some police
officer who told that my husband had a quarrel with
someone and he has been injured on his head and he
asked me to come”.
36. Since it stands established that the deceased was last seen with the
appellant in his house and which fact has not been disputed by the
appellant himself, according to Section 106 of the Indian Evidence
Act the onus of proving facts especially within the knowledge of
someone who has it, is upon him.
37. The presumption under Section 106 of the Indian Evidence Act, is
explained in Hasmuddin vs State of Delhi (2008) ILR 2 Delhi
701, wherein it has been held by the Delhi High Court that :
“20. As per settled law it is not as if the
conviction can only be based on the sole ground
of last seen as last seen together may not by itself
necessarily lead to the inference that it was the
accused who committed the crime. We consider it
necessary at this stage to refer to a decision of
the Supreme Court of India reported in State of
Rajasthan v. Kashi Ram AIR 2007 SC 145,
where the law on this subject has been discussed
Crl. Appeal No. 524/2014 Page 28 of 39
in detail. Relevant portion of the same reads as
under:
“18. Learned counsel for the State strenuously
urged before us that the High Court committed
an apparent error in ignoring the evidence on
record which disclosed that the respondent was
last seen with deceased Kalawati in his house on
February 3, 1998 late in the afternoon.
Thereafter, he was not seen by anyone and his
house was found locked in the morning. The
evidence of PW-5, mother of the deceased
Kalawati, and her brother Manraj, PW-2,
clearly prove the fact that the house was found
locked on February 4, 1998. The evidence also
establishes beyond doubt that the doors were
removed and dead bodies of the deceased
Kalawati and her daughters were found inside
the house on February 6, 1998. In these
circumstances, the disappearance of the
respondent was rather suspicious because if at
all only he could explain what happened
thereafter. He, therefore, submitted that in the
facts of the case, in the absence of any
explanation offered by the respondent, an
inference must be drawn against the respondent
which itself is a serious incriminating
circumstance against him. He has supported his
argument relying upon several decisions of this
Court.
19. Before adverting to the decisions relied
upon by the counsel for the State, we may
observe that whether an inference ought to be
drawn under Section 106 IPC is a question
which must be determined by reference to
proved. It is ultimately a matter of appreciation
of evidence and, therefore, each case must rest
on its own facts.
20. In Joseph s/o KooveliPoulo v. State of
Kerala (2000) 5 SCC 197; the facts were that the
deceased was an employee of a school. The
appellant representing himself to be the husband
Crl. Appeal No. 524/2014 Page 29 of 39
of one of the sisters of Gracy, the deceased, went
to the St. Mary's convent where she was
employed and on a false pretext that her mother
was ill and had been admitted to a hospital took
her away with the permission of the Sister in
charge of the Convent, PW-5. The case of the
prosecution was that later the appellant not only
raped her and robbed her of her ornaments, but
also laid her on the rail track to be run over by a
passing train. It was also found as a fact that the
deceased was last seen alive only in his
company, and that on information furnished by
the appellant in the course of investigation, the
jewels of the deceased, which were sold to PW-
11 by the appellant, were seized. There was
clear evidence to prove that those jewels were
worn by the deceased at the time when she left
the Convent with the appellant. When question
under Section 313Cr.P.C, the appellant did not
even attempt to explain or clarify the
incriminating circumstances inculpating and
connecting him with the crime by his adamant
attitude of total denial of everything. In the
background of such facts, the Court held:
Such incriminating links of facts could, if at all,
have been only explained by the appellant, and
by nobody else, they being personally and
exclusively within his knowledge. Of late, courts
have, from the falsity of the defence plea and
false answers given to court, when questioned,
found the missing links to be supplied by such
answers for completing the chain of
incriminating circumstances necessary to
connect the person concerned with the crime
committed (see State of Maharashtra v.
Suresh, (2000) 1, SCC 471). That missing link to
connect the accused-appellant, we find in this
case provided by the blunt and outright denial of
every one and all the incriminating
circumstances pointed out which, in our view,
with sufficient and reasonable certainty on the
facts proved, connect the accused with the death
and cause for the death of Gracy.
Crl. Appeal No. 524/2014 Page 30 of 39
21. In Ram GulamChaudhary and Ors. v.
State of Bihar , (2001) 8 SCC 311; the facts
proved at the trial were that the deceased boy
was brutally assaulted by the appellants. When
one of them declared that the boy was still alive
and he should be killed, a chhura blow was
inflicted on his chest. Thereafter, the appellants
carried away the boy who was not seen alive
thereafter. The appellants gave no explanation
as to what they did after they took away the boy.
The question arose whether in such facts
Section 106 of the Evidence Act applied. This
Court held: In the absence of an explanation,
considering the fact that the appellants were
suspecting the boy to have kidnapped and killed
the child of the family of the appellants, it was
for the appellants to have explained what they
did with him after they took him away. When the
abductors with held that information from the
court, there is every justification for drawing the
inference that they had murdered the boy. Even
though Section 106 of the Evidence Act may not
be intended to relieve the prosecution of its
burden to prove the guilt of the accused beyond
reasonable doubt, but the section would apply to
cases like the present, where the prosecution has
succeeded in proving facts from which a
reasonable inference can be drawn regarding
death. The appellants by virtue of their special
knowledge must offer an explanation which
might lead the Court to draw a different
inference.
22. In Sahadevan alias Sagadevan v. State,
represented by Inspector of Police,
Chennai (2003) Vol. 1 SCC 534, the prosecution
established the fact that the deceased was seen
in the company of the appellants from the
morning of March 5, 1985 till at least 5 p.m. on
that day when he was brought to his house, and
thereafter his dead body was found in the
morning of March 6, 1985. In the background of
such facts the Court observed:
Crl. Appeal No. 524/2014 Page 31 of 39
Therefore, it has become obligatory on the
appellants to satisfy the court as to how. where
and in what manner Vadivelu parted company
with them. This is on the principle that a person
who is last found in the company of another, if
later found missing, then the person with whom
he was last found has to explain the
circumstances in which they parted company. In
the instant case the appellants have failed to
discharge this onus. In their statement under
Section 313Cr.P.C. they have not taken any
specific stand whatsoever.
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
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.”
Crl. Appeal No. 524/2014 Page 32 of 39
Hon’ble Supreme Court in another case of State of
Rajasthan v. Thakur Singh, 2014 (8) SCALE 82 has held that :
“22. The law, therefore, is quite well settled that the
burden of proving the guilt of an accused is on the
prosecution, but there may be certain facts pertaining
to a crime that can be known only to the accused, or
are virtually impossible for the prosecution to prove.
These facts need to be explained by the accused and if
he does not do so, then it is a strong circumstance
pointing to his guilt based on those facts”.
38. The appellant did not give any plausible explanation to prove that
he did not murder the deceased although he was present at the spot
of the incident and the persons named by him who according to
him visited his house are the persons who murdered the deceased.
On the basis of medical evidence on record it stands proved that
the injuries on the body of the appellant were self-inflicted so as to
free himself from the doubt of murder of the deceased.
Motive
39. It is not necessary for the prosecution to prove the motive for the
crime as held in case of State of U.P. v. Hari Prasad (1974) 3 SCC
673, it has been observed that:
“This is not to say that even if the witnesses are
truthful, the prosecution must fail for the reason that
the motive of the crime is difficult to find. For the
matter of fact, it is never incumbent on the prosecution
to prove the motive for the crime. And often times, a
motive is indicated to heighten the probability that the
offence was committed by the person who was impelled
by that motive. But, if the crime is alleged to have been
committed for a particular motive, it is relevant to
Crl. Appeal No. 524/2014 Page 33 of 39
inquire whether the pattern of the crime fits in with the
alleged motive.”
40. In the present case, the prosecution examined Liyakat Ali (PW-4),
Sadiq (PW-5), Irshad Ali (PW-7), Nagma (PW-22) and Firasat
(PW-25) to prove that they had business dealings with the
appellant and the appellant owed them money. The appellant in his
statement admitted that he had an Export – Import Business in the
name of M/s. J. Brothers Zari Exports, which was a proprietorship
firm and the deceased was accountant of his firm. The above
named witnesses examined by the prosecution have deposed that
the appellant owed money to them and in order to get rid of the
debts he planned to implicate them in a false case and named them
for the murder of his own accountant whereas they were not even
present at the place of occurrence.
41. Relying on the above, we find that the circumstances and pattern of
the crime are congruent with the motive as alleged by the
prosecution.
Conviction under Section 120-B of the Indian Penal Code
42. Learned counsel for the appellant argued that conviction of a single
accused under Section 120-B is wholly invalid and erroneous and
prosecution has failed to prove the conspiracy between appellant
and Rashid (absconding).
43. In our view, to prove the conspiracy between the appellant the
Rashid (absconding), it will be useful to peruse the testimony of
Raj Kumar Bhatia (PW-3) who deposed that :
“ I went upto his second floor. His servant Rashid
had opened the door. We sat on the sofa. Rashid
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brought the juice. I know Rashid as he used to
come at Vinobha Puri to meet accused Saleem and
I met him there”.
44. From the testimony of Raj Kumar (PW-3) it is clear that Rashid,
servant of the appellant was present in his house at 05:00/06:00 pm
on 06.10.2007. Raj Kumar (PW-3) categorically deposed that he
knew Rashid servant of the appellant and it was he who had served
juice to him and opened the door. It is therefore established that
Rashid was also present around the time of incident in the house
and the appellant failed to throw any light on the disappearance of
Rashid. The investigating officer had deposed that when he broke
open the door of the second floor he found the appellant lying over
the deceased and one Almirah was also lying fallen on the
appellant. Admittedly the gun with which the appellant was
injured could also not be found/traced. The entire material on
record shows that the appellant was not alone and the only
inference which could be drawn from the circumstances is that he
had taken the help of someone else. There is evidence to establish
that Rashid was present at the spot of incident and the effect of all
the circumstances is that it was he who helped the appellant in the
commission of crime and took away the gun with which the
injuries were inflicted by the appellant.
Defective Investigation
45. As far as the argument of the learned counsel for the appellant with
regard to the failure on the part of the prosecution to link the
appellant with the gun, it has come on record from the statement of
the appellant that one person attacked him on his thigh with a
chopper and the other person shot him by taking the gun from
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Liyakat (PW-4) and he was hit on the chest on the right side. ASI
Veer Sain (PW-21) also deposed in his statement that on
06.10.2007 when he reached the spot he found two persons lying
there in injured condition and one of them was the appellant who
was having a bullet like injury on his right side of the chest. Dr.
Imtiakum (PW-30) who conducted the MLC corroborated the fact
of gunshot on the appellant and opined that there were three
injuries on his body and injury no. 1 & 2 were gunshot injuries. SI
Mahesh Kumar (PW-17) prepared scaled site plan Ex.PW17/A and
mentioned at point G&H Lead Mark on wall at height 0.70 and
Lead of used bullet but no gun was recovered by the
IO/Investigating Officer Ganga Singh (PW-63) nor any effort has
been put in by the investigating agency to prove the fact that there
was a gunshot on the date of the incident. In the case of C.
Muniappan v. State of T.N., (2010) 9 SCC 567, wherein it has
been held by the Hon’ble Supreme Court that:
“55. There may be highly defective investigation in a
case. However, it is to be examined as to whether
there is any lapse by the IO and whether due to such
lapse any benefit should be given to the accused. The
law on this issue is well settled that the defect in the
investigation by itself cannot be a ground for
acquittal. If primacy is given to such designed or
negligent investigations or to the omissions or lapses
by perfunctory investigation, the faith and confidence
of the people in the criminal justice administration
would be eroded. Where there has been negligence
on the part of the investigating agency or omissions,
etc. which resulted in defective investigation, there is
a legal obligation on the part of the court to examine
the prosecution evidence dehors such lapses,
carefully, to find out whether the said evidence is
reliable or not and to what extent it is reliable and as
Crl. Appeal No. 524/2014 Page 36 of 39
to whether such lapses affected the object of finding
out the truth. Therefore, the investigation is not the
solitary area for judicial scrutiny in a criminal trial.
The conclusion of the trial in the case cannot be
allowed to depend solely on the probity of
investigation.
Similar view was taken by the Apex Court in the case of
Sunil Kundu v. State of Jharkhand , (2013) 4 SCC 422: (2013) 2
SCC (Cri) 427: 2013 SCC On Line SC 316, wherein it was held:
“29...It is true that acquitting the accused merely on
the ground of lapses or irregularities in the
investigation of a case would amount to putting
premium on the depreciable conduct of an
incompetent investigating agency at the cost of the
victims which may lead to encouraging perpetrators
of crimes. This Court has laid down that the lapses or
irregularities in the investigation could be ignored
subject to a rider. They can be ignored only if despite
their existence, the evidence on record bears out the
case of the prosecution and the evidence is of sterling
quality. If the lapses or irregularities do not go to the
root of the matter, if they do not dislodge the
substratum of the prosecution case, they can be
ignored....”
In another case of Hema v. State, (2013) 10 SCC 192, it was
observed by the Apex Court that:
“18 . It is clear that merely because of some defect in
the investigation, lapse on the part of the
investigating officer, it cannot be a ground for
acquittal. Further, even if there had been negligence
on the part of the investigating agency or omissions,
etc. it is the obligation on the part of the court to
scrutinise the prosecution evidence dehors such
lapses to find out whether the said evidence is
reliable or not and whether such lapses affect the
object of finding out the truth.”
Crl. Appeal No. 524/2014 Page 37 of 39
46. On the basis of the law discussed above, we are of the opinion that
benefit cannot be given to the appellant for the lapse in
investigation and despite the gun having not been recovered the
prosecution was able to complete the chain of circumstances.
47. From the evidence adduced by the prosecution we are of the view
that the appellant made a false complaint against Nagma (PW-22),
Liyakt Ali (PW-4), Irshad Ali (PW-7), Sadiq (PW-5), Firasat (PW-
25), Matloob Ali, Ijaz Ali and three other unknown persons and
had concocted a story to falsely implicate all the above named
persons to whom he owed payments for his business dealings. The
prosecution was able to prove its case against the appellant as the
above named persons took the plea of alibi which stands proved.
Further from the testimony of Smt. Kiran Sethi, the wife of the
deceased (PW-2), it stands proved that it was the appellant who
had called the deceased to his house before his death and the
deceased and appellant were present in the house of the appellant
before the death of the deceased. The Appellant also failed to
explain the circumstances in which the death of the deceased took
place. The unnatural conduct of the appellant and the medical
evidence on record show that there was every possibility that the
injuries were self inflicted and all these circumstances prove the
case of the prosecution. The plea taken by the learned counsel for
the appellant that the examination of the appellant under Section
313 was wholly unnecessary and improper does not hold ground.
48. For the reasons stated above and on the basis of the testimonies of
the witnesses and in congruence with the last seen theory it stands
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established that none else but the appellant is the author of the
crime.
49. It is also worthwhile to mention that we have also gone through the
CD prepared by the prosecution reiterating the actual crime scene
but nothing constructive was found.
50. Hence, in view of the above we do not find any infirmity in the
impugned judgment. Accordingly, the judgment dated 30.10.2013
and order on sentence dated 12.12.2013 passed by the Learned
Trial Court against the appellant are upheld. The present appeal is
dismissed.
51. Appellant is reported to be in jail. He shall serve the remaining
period of sentence.
52. Copy of the judgment be sent to Superintendent Jail and trial court
for compliance.
53. The Registry shall transmit the Trial Court records forthwith.
SANGITA DHINGRA SEHGAL, J.
G. S. SISTANI, J.
APRIL 13, 2015
sc
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