REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 01 OF 2023
(ARISING OUT OF SLP(CRIMINAL) NO. 2958 OF 2019)
PREM SINGH ….APPELLANT(S)
VERSUS
STATE OF NCT OF DELHI ….RESPONDENT(S)
JUDGMENT
DINESH MAHESHWARI, J.
Table of Contents
Preliminary and brief outline ............................................................................................ 2
Relevant factual and background aspects ......................................................................... 5
Prosecution Evidence ............................................................................................................... 7
Stand of the appellant ........................................................................................................... 21
Trial Court found the appellant guilty and awarded life imprisonment ............................ 22
High Court dismissed the appeal filed by the appellant ................................................... 26
Rival Submissions ........................................................................................................... 29
The scope and width of this appeal ................................................................................. 38
The principles relating to circumstantial evidence; burden of explanation; hostile
witness; and motive ....................................................................................................... 39
Application of the relevant principles to the facts of this case ................................................. 46
Plea of mental incapacity of the appellant ...................................................................... 52
Conclusion ...................................................................................................................... 62
Signature Not Verified
Digitally signed by
Neetu Khajuria
Date: 2023.01.02
18:20:12 IST
Reason:
1
Preliminary and brief outline
Leave granted.
2. This appeal is directed against the judgment and order dated
29.02.2016, as passed by the High Court of Delhi at New Delhi in Criminal
Appeal No. 879 of 2013, whereby the High Court has dismissed the appeal
against the judgment of conviction and order of sentence, respectively
dated 03.09.2011 and 08.09.2011, as passed by the Court of Additional
Sessions Judge-IV, Rohini (Outer), Delhi in Sessions Case No. 238 of
2009, whereby the appellant was held guilty of offences punishable under
1
Sections 302 and 201 of the Indian Penal Code, 1860 and was awarded
varying punishments, including that of imprisonment for life for the offence
under Section 302 IPC.
3. Before dealing with the matter in necessary details, we may draw a
brief outline to indicate the contours of the forthcoming discussion.
3.1. The allegations against the appellant had been that on 03.05.2009,
he took his two sons, aged about 9 years and 6 years, to Haiderpur Canal,
strangulated them, and threw the dead bodies into the canal; and
thereafter, attempted to project as if it were a case of accidental drowning.
It was also alleged that the appellant was a drunkard, who doubted the
chastity of his wife and suspected that the children were not his sons.
1
‘IPC’, for short.
2
3.2. In trial, two of the prosecution witnesses, PW-5 Bishan Singh
(brother of the appellant) and PW-9 Sunita Yadav (wife of the appellant)
did not support the prosecution case as regards conduct and behaviour of
the appellant. However, the Trial Court held that all the essential and
material facts were duly established in the evidence adduced by the
prosecution, including that the deceased children were last seen in the
company of the appellant, who took them to canal and later on informed
the staff at the Haiderpur Water Plant and at the Petrol Pump as also to the
police that they accidentally fell into the canal; that the cause of death of
both the children had been asphyxia as a result of manual strangulation;
and that the appellant was a drunkard who doubted the chastity of his wife
and thought that he was not the father of the deceased children. The Trial
Court, therefore, convicted the appellant of the offences under Sections
302 and 201 IPC and awarded the punishments accordingly.
3.3. In appeal, it was essentially contended on behalf of the appellant
that there were missing links in the chain of events, particularly when the
allegations of the appellant doubting the chastity of his wife were not proved
and hence, there was no reason for which the appellant would have killed
his own sons. Per contra, it was submitted on behalf of the respondent-
State that the children were lastly seen in the company of the appellant and
it was clearly established that they died due to manual strangulation and
not on account of drowning, as falsely suggested by the appellant, who
otherwise failed to discharge the burden, in terms of Section 106 of Indian
3
2
Evidence Act, 1872 , of explaining the circumstances leading to the death
of the children by strangulation. The High Court again minutely analysed
the evidence on record and, while rejecting the contentions urged on behalf
of the appellant, dismissed the appeal and affirmed the findings and
conclusions of the Trial Court.
3.4. In challenge to the concurrent findings leading to conviction and
sentencing of the appellant, it has essentially been contended on his behalf
that when the story of strained relationship between the appellant and his
wife has not been supported by the material witnesses including the wife
of the appellant, there was no reason or motive for the appellant to kill his
own sons; and the alleged want of explanation on the part of the accused-
appellant cannot be a ground for conviction in the present case. It has also
been contended that there had been a fundamental defect in the trial when
the Trial Court omitted to examine the capacity of the appellant in terms of
3
Section 329 of the Code of Criminal Procedure, 1973 while ignoring the
material evidence on record to the effect that the appellant was not a
person of sound mental disposition, for he was admitted to a rehabilitation
centre for de-addiction and was discharged against the advice of the
centre. The facts regarding treatment of the appellant for mental illness
post-conviction have also been referred to in this regard. On the other
hand, it has been contended on behalf of the respondent-State that when
2
Hereinafter also referred to as ‘the Evidence Act’.
3
‘CrPC’, for short.
4
the deceased were lastly seen in the company of the appellant, the burden
was heavy upon him to explain the cause of their unnatural death, which
he had failed to discharge; rather he gave false information about
accidental drowning of the children. It has also been submitted that the plea
of unsoundness of mind, as taken before this Court, remains untenable for
the same having not been raised in trial or even in appeal before the High
Court. It is submitted that even if the appellant had been admitted to and
treated in the psychiatry ward after conviction, it would not take his case of
such unsoundness of mind at the time of commission of the crime that he
could be absolved or exonerated.
Relevant factual and background aspects
4. With reference to the outline as above and looking to the questions
arising for determination in this appeal, the relevant factual and background
aspects could be noticed, in brief, as follows:
4.1. The prosecution case, based on circumstantial evidence, had been
that the appellant took his two sons Jitesh and Sunny, aged about 9 years
and 6 years respectively, to Haiderpur Canal at Haiderpur Water Plant,
Paschim Vihar, Delhi under the pretext of having fun and after reaching the
said place and getting opportunity, he strangulated them one by one and
threw the dead bodies into the canal. The prosecution case further had
been that the appellant attempted to project as if the children accidentally
fell into the canal and in that effort, he jumped into the canal and, after
swimming for some distance, came out and then, went to the nearby office
5
of Water Treatment Plant to inform the staff present there about his sons
having accidentally fallen into the canal; and thereafter, he also went to a
nearby Petrol Pump and narrated the same story to one of the employees
and made a call at 100 number to the police. According to the prosecution,
after reaching of the police, the appellant narrated the same version.
4.2. However, after recovery of the dead bodies and their post-mortem
examination, it was revealed that the children did not die because of
drowning but the cause of death had been asphyxia as a result of manual
strangulation. In the given circumstances, suspicion turned towards the
appellant, for he was the person lastly in the company of the deceased
children. It was alleged that during interrogation, the appellant confessed
to the crime while stating that he doubted the chastity of his wife and
suspected that the children were not his sons.
4
4.3. After conducting investigation in the First Information Report
registered in this matter bearing No. 253 of 2009, Police Station Prashant
Vihar, charge-sheet was filed against the appellant for the offences
punishable under Sections 302 and 201 IPC. After the case was committed
to the Court of Sessions and the necessary charges were framed, the
appellant pleaded not guilty and claimed trial.
4
‘FIR’, for short.
6
Prosecution Evidence
5. In trial, the prosecution examined as many as 18 witnesses. The
peculiar feature of the case had been that while two of the witnesses, PW-
7 Mahender Kumar Yadav, uncle of the wife of the appellant, and PW-8
Rajender Yadav, another uncle of the wife of the appellant, attempted to
suggest that the appellant was a drunkard who used to give beating to his
wife and suspected her character but, PW-5 Bishan Singh, brother of
appellant, as also PW-9 Sunita Yadav, wife of the appellant, did not support
this version. On the contrary, wife of the appellant specifically maintained
that she had always been having good and cordial relations with her
husband. Another set of evidence in this case had been in relation to the
addiction of the appellant to alcohol and his admission to, and discharge
from, rehabilitation centre. In this regard, the testimonies of PW-2 Puran
Singh, cousin of the appellant, and of PW-3 Jagbir, manager of
rehabilitation centre assume relevance in view of emphasis laid in this
appeal on mental disposition of the appellant. Yet another set of evidence
had been of three witnesses, PW-1 Naresh Kaushik, delivery boy at the
Petrol Pump, PW-4 Mahesh Kumar Sharma and PW-6 Komal Ram, the
personnel in-charge at the Water Treatment Plant, who testified to the facts
about the appellant visiting them immediately after the incident while
suggesting that his sons had accidentally fallen into the canal. PW-14 Dr.
V.K. Jha had been the medical officer who conducted post-mortem over
the dead bodies and maintained his opinion that the cause of death in
7
relation to each of the children was asphyxia as a result of manual
strangulation. The other witnesses had been the personnel who conducted
the investigation or carried out the tasks related thereto.
6. Though elaboration on the entire prosecution evidence is not
necessary for the purpose of the present appeal but, having regard to the
contentions urged, we may take note of the relevant depositions
concerning material factors namely, the appellant’s addiction to alcohol and
his admission to, and discharge from, the rehabilitation centre; the
appellant’s conduct towards his wife; the appellant’s version immediately
after the event leading to the demise of his two sons; and the medical
opinion after post-mortem of the dead bodies of the victim children.
6.1. As regards addiction of the appellant and the matters related with
his admission to, and discharge from, the rehabilitation centre, the relevant
part of the testimonies of PW-2 Puran Singh, cousin of the appellant and
5
PW-3 Jagbir, the manager of rehabilitation centre would read as under : -
“PW 2 Sh. Puran Singh Yadav S/o Sh. Bharat Singh Yadav, aged
about 63 years, R/o DU 72 Vishakha Enclave, Pitampura Delhi.
On S.A.
…..About 15/20 days prior to the present incident I came to know
that Prem Sing is admitted at Chetna Deaddiction Centre in
Auchandi Village due to his habit of consume liquor. I visited the
said deaddiction centre and found him admitted over there. I tried
to contact the doctor over there but the officials of said centre
informed me that the doctor will come on Wednesday but on
wednesday the said doctor did not arrive and they informed me on
telephone that doctor will come on Friday. When I made a
telephonic call at the said deaddiction centre on friday then I came
to know that my uncle had got accused Prem Singh discharged from
5
Most of the extractions herein are verbatim from the copies placed on the record of this appeal.
8
the said centre. I raised an objection to the officials of said
deaddiction centre as to why they had discharged Prem Singh as
his condition was not normal.
After 2 or 3 days of his discharge the present incident took place
as far as I remember it was Sunday night. Had Prem Singh not been
discharged from the said deaddiction centre the present incident
could have been avoided.
At this stage Ld. APP seeks permission to put some leading
question to the witness. Heard. Allowed.
Q I put it to you that Prem Singh used to quarrel with his wife Sunita
and used to regularly beat and abuse his wife Sunita and his both
the deceased sons. Prem Singh is a man of violent nature?
A. I am unaware about the said facts as I was not a regular visiter
in the house of Prem Singh. I never stated so in my statement
recorded by the police and the IO had mentioned the said facts in
my statement on his own.
xxxxx by Ms. Sadhna Bhatia, Amicus Curie Ld. Counsel for the
accused.
IO never recorded my statement. IO never made any inquiry from
me regarding this case. What ever I have deposed before the court
today is true. I had never seen accused beating his wife or abusing
his children as I reside separatly from their family and do not
interfere in their house. It is wrong to suggest that I am deposing
falsely.”
*
“PW3 Statement of Sh. Jagbir S/o Sh. Sukhbir Singh, aged 40
years, R/o H. No. 205, village – Auchandi, Delhi – 39.
On S.A.
I am working as manager of Chetna Foundation (Regd.) Drugh
De-addiction and Rehabilitation Centre, Village Auchandi, Delhi- 39
for last five years.
In our said centre accused Prem Singh present in the court today
(correctly identified) was admitted on 20.11.08 for de-addiction of
his habit of consuming ahlcohol. He was got admitted by his father
Girdhari Singh and his wife Sunita. He remained admitted at our
said centre till 29.04.09. During the said period his counseling was
done and after that he used to behave like an ordinary prudent man.
During his said stay of about of 5 months at our centre he never
went to his home. His wife Sunita, Sister Baladevi, father Girdhari
Lal and Cousin Puran Singh came at our centre to meet him. He
used to talk telephonically with his wife Sunita, father Girdhari and
other persons from the telephone no. installed at our centre i.e,
9
27742360 and 27741540. The behaviour of the Prem Singh was
normal during his said stay and he was never given any medicine
for mental illness because neither any mental illness was observed
in him nor his family members gave us any previous history of his
suffering from any mental illness. He was only having addiction to
liquor as told to us by his family members.
….. ……. ……….
On 29.04.2009 Girdhari Singh along with one other person got
Prem Singh discharge from our centre against our advice as I had
advised him to complete the course of 7-9 months. IO recorded my
statement. Documents which I had handed over to the IO i.e.,
certificate is Ex. PW3/B and the photocopy of his complete file of 8
pages is collectively Ex. PW 3/C all the documents signed by me at
point A. Original documents produced by the witness seen and
returned.
xxxxx by Ms. Sadhna Bhatia, Amicus Curie, Ld. Counsel for the
accused.
Accused was mentally fit and sound during his stay at our centre
and he was admitted only for de-addiction of his habit of consuming
liquor.”
6.2. As noticed, PW-7 Mahender Kumar Yadav and PW-8 Rajender
Yadav, both uncles of the wife of the appellant, asserted that the appellant
was not having good relations with his wife, was taken to the habit of
consuming liquor excessively, and was suspecting the character of his wife.
However, PW-5 Bishan Singh, brother of the appellant and PW-9 Sunita
Yadav, wife of the appellant did not support the version of PW-7 and PW-
8. We may take note of the relevant parts of the statements of PW-7, PW-
8, PW-5 and PW-9, in that order, as under: -
“PW7- Statement of Mahender Kumar Yadav, Aged-52 years S/O
Late Sh. Ram Kishan Yadav R/O WZ-350 Village Shakurpur Delhi.
On S.A.
My niece Sunita Yadav had been married to accused Prem
Singh in the year 1996 and after marriage she starts residing at
H.NO-225 Haider Pur Delhi. Accused Prem Singh present in the
10
court today used to comment on the chastity of my niece Sunita
Yadav. Accused used to taking liquor and giving beating to Sunita.
Accused used to blame on my niece that she was not having good
character. Two male issues were borned after the wed-lock. She
was also told by his father in an effort to rectify accused Prem Singh
to join Nasha Mukti Kendr, Auchandi Gav. On advise of her father
accused was admitted to the above centre for his treatment by my
niece but on 29.04.2004 accused’s father has relieved his son from
the Nasha Mukti Kendr Centre.
Regarding both the issue accused Prem Singh used to comment
that they were not belongs to me and used to quarreled with my
niece and stated that they belongs to someone else. Once accused
Prem Singh attempted to kill both the child by giving them electric
shock but with the pursuation of my niece and showing her
humbleness she was able to save both the child. Thereafter, Sunita
came to our house and remained in our house for about 5-6 months
and thereafter Prem Singh has taken my daughter to his house.
Accused Prem Singh after coming from the Nasha Mukti Kendr
remains quiet for 2-3 days but later on he continued his same
behavior i.e, blaming on my niece and talk vulger with her. He also
stated that your calling some persons in your house and indulging
in bad activities ( galat kaam ) like sexual assault. He also used to
quarrel with my daughter.
On 03.05.2009 Sunita came to my house and stated that
accused Prem Singh quarreling with her. I went to his house and
tried to consolidate their matter but could not succeed, ultimately I
returned to my house. On the same day at about 11:00 am I
received a phone call by the police that both the children of my niece
Sunita were died by drowning in the canal near Haider Pur Water
treatment plant. I suspect that both the children have not been
drowned as their own but they were killed by their father accused
Prem Singh……. At the time of recovery of the dead body accused
Prem Singh was claiming that both the children have been drowned
in the canal on their own but later on after his arrest he admitted
that he has committed murder of his both the children. Police
recorded the disclosure statement of accused Prem Singh in my
presence same is EXPW-7/D signed by me at pt A.
xxxxxx advocate by Ms. Sadhna Bhatia (Amicus Curie) for the
accused.
We have not made any complaint regarding the above said
behavior to the police. My statement was recorded at the PP
Prashant Vihar. We have not called Panchayat in regard to the
quarrel between my niece and Prem Singh. Vol. We had gone to
the house of accused for number of times for reconsider the matter
but accused could not give any heed. My niece Sunita told me about
the attempt of accused to kill his both the children by way of electric
shock but I had not seen personally. We have not made any
11
complaint for the above incident to the police. I had not seen
personally any beating by accused to his wife. The house of
accused is about 5 km from my house. On 03.05.2009 I went to
canal at about 07:00 pm. When I saw accused near the canal and
also seen his children’s body. I did not report the matter to the police
regarding conduct of accused qua my niece and the children. I had
not seen the occurance. It is incorrect to suggest that I am deposing
falsely being the maternal uncle of Sunita or that accused used to
love Sunita and the children or that he did not commit the alleged
offence or that being relative of Sunita I had deposed falsely in the
court.”
*
“PW8- Statement of Rajender Yadav, aged 43 years S/O Sh.
Jawahar Singh R/O WZ-342 Village Shakur Pur Delhi.
On SA
I am running a shop in the name of M/s. Astha Enterprises at
Sector-7 Rohini Delhi. Sunita W/O accused Prem Singh is my niece
who has been married with accused for about 12-13 years before.
Initially, accused Prem Singh was working as a transporter but later
on he left this work and become unemployed and he used to take
liquor often. My niece used to tell whenever she visited our house
that accused used to abusing her and also demanding money and
also gave beating her. We sometime help her in cash. 2-3 years
after the marriage Sunita’s both son Jitesh and Sunny live with us
in our house for about 2 years. Because of the habit of acute
drinking of accused he was once sent to Nasha Mukti Kendr by his
wife Sunita but later on the family members of accused released
him against the wishes of Sunita. On the day of release accused
Prem Singh has given severe beatings to his wife Sunita and both
his children and in turn Sunita came to our house leaving children
at the house of accused at Haider Pur. We received a phone call for
PS Prashant Vihar on 03.05.2009 that they have informed by Prem
Singh that his 2 children has drown in the Haider Pur Canal while
they were playing near the canal in front of him. We went to the PS,
I and Mahender Singh son of my uncle late Sh. Ram Kishan and in
the PS we saw that Prem Singh was apprehended by the police and
we were having strong suspicion that Prem Singh has drown his
both the children as he was suspicion over the character of Sunita.
During drunken condition accused also gave beatings to his both
the sons and his behavior towards his children was abnormal as he
withdraw both the children Jitesh and Sunny from the school……
xxxxxx By Ms. Sadhna Bhatia (Amicus Curie) for the accused Prem
Singh.
My statement was recorded by the police in PS on 03.05.2009 in
the evening. It is correct that my statement was recorded on
12
13.06.2009 after he was pointed out the date of statement recorded
U/S 161 CRPc. I had stated to the police in my statement that Jitesh
and Sunny were lived in our house before their death for about 2
years. Confronted from statement EX PW-8/DA where it is not so
recorded. I have stated to the police that after returning from the
Naksh Mukti Kendr accused has given beatings to his both sons.
Confronted from statement EX PW-8/DA where it is not so
recorded. We have not made any complaint to the police regarding
beating of my niece and her children. It is wrong to suggest that
accused was not affectionate to his children and not suspicion on
the character of my niece. It is correct that my niece only informed
about beating whenever she visited our house. It is correct that my
niece and her sons were not beaten in my presence. It is wrong to
suggest that I am deposing falsely.”
*
“ PW5 -Statement of Bishan Singh S/O Sh. Girdhari Singh (recalled
for further examination since deferred dt. 06.09.2010)
ON SA
The name of son of my brother Prem Singh is Jitesh and Sunny.
At the time of incident my brother Prem Singh was unemployed. His
habits were normal but he used to take liquor. Previously he was
having transport business and having 2 trucks but 4-5 year before
he has sold his trucks and thereafter he was running poultary mills
and he indulged in the business only for one year and thereafter he
become unemployed. There was tension between my brother and
his wife and during those days he was taking drinks open. Some
time we listen hitted conversation between my brother and his wife.
I do not know the real cause of their strange relation. He was having
normal relations with his children also. My brother Prem Singh was
once admitted in Nasha Mukti Kendr at Auchandi and he remained
there for about one year. He was released by my father Sh. Girdhari
Singh from the Nasha Mukti Kendr on the assurance of Prem Singh
to amend his habits and leave the habit of intoxication and also his
condition was deteriorating….. I do not know what had happened
with the children of Prem Singh. I listen from police person that my
both nephew were drowned in the Yamuna Canal. I was also went
to hospital and after postmortem at BJRM Hospital. The dead body
of my nephew Jitesh and Sunny was handed over to the relatives
vide receipt EX PW-2/B signed by me at pt C. Police had recorded
my statement at PP Prashant Vihar but I do not know the date when
my statement was recorded.
At this stage, Ld. APP submits that he wants to cross examine
the witness as he is resiling from his previous statement.
Heard. Allowed
Xxxxxx by Ld. APP for the State.
13
I do not remember that my statement EX PW-5/A was recorded
on 13.06.2009 or not. It is wrong to suggest that I have stated in my
statement that my brother Prem Singh during quarrel and in the rage
he used to abusing and beating his wife. Confronted from “A” to “A1”
of my statement EX PW-5/A where it is so recorded. I have not
stated to the police that my brother was suspicious over the
character of his wife and the suspicion was because of the reason
that whenever his wife come from the house of Mahender Singh,
his maternal uncle situated at Shakur Pur Village, she was brought
by some boys of tenant of Mahender Singh. He was also not having
affection like a father towards his both the sons and during quarrel
he used to pin pointing that the sons were not belongs to him. Prem
Singh was not controlled neither by me not his father. Confronted
from “B” to “B1” of my statement EX PW-5/A where it is so recorded.
It is correct that my brother was released from the Nasha Mukti
Kendr on 29.04.2009. it is correct that on receiving the information
from Rohini Court police staff on 03.05.2009 they informed that they
got an information for my brother Prem Singh that when both his
son Jitender and Sunny were present at Haider pur Canal and they
were running and playing in front of him they were drowned in the
canal and flown (Beh Gaye) in the canal. I have not stated to the
police that oftenly my brother cursing the character of his wife and
abusing and beating her and was having haterisim against his both
the sons. Confronted from “C” to “C1” of my statement EX PW-5/A
where it is so recorded. I have not stated to the police that the cause
of suspicion over character of wife and for taking revenge from his
wife he has committed murder of his both son Jitesh and Sunny and
thereafter informed to the police that they were drowned in the canal
when they were playing. Confronted from “D” to “D1” of my
statement EX PW-5/A where it is so recorded. It is wrong to suggest
that accused is my brother as such I am not giving the fair statement
which I have got recorded during the police investigation. It is wrong
to suggest that due to passage time my anger cool down or that I
am deposing in favour of accused Prem Singh. It is wrong to
suggest that I strategically concealed the fact of haterism of my
brother towards his wife because of her character and concequently
his ill behavior towards his sons and ultimately causes the death of
his sons.
xxxxxx By Ms. Sadhna Bhatia (Amicus Curie) for the accused Prem
Singh.
No complaint was lodged to the police when the quarrel erupts
between accused and his wife. Accused was having affection and
love towards his both the sons.”
*
“PW9- Statement of Sunita Yadav, aged-35 years W/O Sh Prem
Singh R/O H. NO-225 Village Haider Pur Delhi.
14
On SA
I have been married with accused Prem Singh in the year 1996.
After marriage I have been blessed with 2 sons. I used to run my
house with the money earned by husband as well as some money
th
given by my father from the rent premises. I am 12 passed. Before
marriage, I used to reside with my maternal uncle Mahender Kumar
Yadav since the age of three years. My real parents were living in
UP in a village Lohara Sarai, Distt. Bagpat. The residence of my
maternal uncle is at H.N -WZ/350, Shakurpur village, Delhi. My
husband used to live me happily after marriage. I have no complaint
with my husband. On the day of incident, I went to the house of my
maternal uncle as my Nani was ill leaving my both the sons with
their father/accused. There were no other reason for leaving my
matrimonial house. I do not know what happened with the children.
Later on, I received a phone call from Prashant Vihar police station
and stated that my both the sons have expired. I have not given
statement to the police. Police has not recorded my statement nor
police inquired from me. I do not want to say anything else in regard
to this case.
At this stage Ld. APP wants to cross examine the witness as she
is supressing the truth and is resiling from her earlier statements
recorded by the police.
Heard. Allowed.
xxxx by LD. APP for the State
I have not signed my statement on 4.5.2006. It is wrong to
suggest that police has recorded my statement on 4.5.2006 and the
same is marked PW9/A signed by me at point A. It is correct that as
the condition of my husband was not well as such he was admitted
4/5 months before the incident to Nasha Mukti Kender. Vol. Stated
that my husband was not taking liquor at all and the doctors of
Nasha Mukti Kender stated that they will treated my husband from
a good doctor. I have not stated to the police that after my husband
was released from Nasha Mukti Kender by my father in law, we live
peacefully for 2/3 days thereafter but on 3.5.2009 at about 11.00
a.m my husband has given beatings to me as a result of which I had
gone to the house of my maternal uncle leaving my both the sons
with him and later on I came to know that my both the sons had
drown in Haiderpur canal. (confronted with portion A to A-1 of my
statement mark PW9/A where it is so recorded). It is wrong to
suggest that police have also recorded my statement and the same
is mark PW9/B and I have stated in the statement that after
marriage I came to know that accused Prem Singh was in a habit of
taking liquor. (Confronted from portion A to A-1 of statement mark
PW9/B where it is so recorded). It is correct that initially my husband
was in the business of transport and he was having two trucks but
later on, both the trucks were sold out and he become unemployed.
15
It is wrong to suggest that he was taking liquor during his
unemployment. (confronted from portion B to B-1 of mark PW9/B
wherein it is so recorded). It is wrong to suggest that accused used
to abusing and beating me (Confronted with portion C to C of mark
PW9/B wherein it is so recorded). It is wrong to suggest that two
and half years before the incident, because of beating and ill
behaviour of accused Prem Singh, I alongwith my both sons went
to the house of my maternal uncle and living in their house or that
accused Prem Singh used to put filthy and dignatory allegations on
me and stated to me ‘characterless’ ( Idher Udher Ke Adamiyo se
Muh Marvati Firthi Hai ) (confronted with portion C to C-1 of
Statement mark PW9/B wherein it is so recorded. It is wrong to
suggest that I have stated to the police officials that accused stated
that both our children were not from him and were due to my illicit
relationship. It is wrong to suggest that due to this reason I was
much perturbed because of his such behaviour or that my husband
do not have affection with my both the sons and hate them.
(confronted with portion D to D-1 of statement mark PW9/B wherein
it is so recorded). It is wrong to suggest that after releasing my
husband from Nasha Mukti Kender he has taunted me that I used
to call different boys and committed wrong act/sexual act with them
and both the sons are not his sons and threatened to kill them or
that he has gave beatings to me and thrown me from his house and
when I requested him to take both the sons with me, he refused and
stated that I will kill them as they were both illegal child. (Confronted
with portion E to E-1 of my statement mark PW9/B where in it is so
recorded).
On the same night, police has informed me on telephone that my
both the sons has drown in the Haiderpur canal and have also
stated that this fact was stated by the accused himself. I have also
not stated to the police that I have suspicion over my husband that
he has killed both my child and falsely stated to the police that they
were drown themselves. (Confronted with portion F to F-2 of my
statement mark PW9/B wherein it is so recorded). It is wrong to
suggest that I have been won over by the accused or that he being
my husband I am not deposing the true facts of the case or that I
have been compromised or that I was emotionally blackmail by the
accused to depose in his favour. It is wrong to suggest that the
signatures belongs to me on mark PW9/A and voluntarily I have
given statement to the police officials. It is wrong to suggest that
accused has never suspicion on my character or that to faded this
issue I am deposing falsely. It is wrong to suggest that I am
deposing falsely.
Xxxxxx By Ms. Sadhna Bhatia (Amicus Curie) for the accused Prem
Singh.
It is correct that my husband loved my both the sons and I was
never beaten or abused by my husband. It is correct that my
husband has never been commenting on my character and never
16
told me characterless. It is correct that my relation with my husband
were remained cordial after marriage.”
6.3. The fact that after the event in question, the appellant visited the
office of Haiderpur Water Plant as also the nearby Petrol Pump and
suggested that his sons had accidentally fallen into the canal had not been
of much dispute. These facts were duly established in the testimony of PW-
4 Mahesh Kumar Sharma and PW-6 Komal Ram related with Haiderpur
Water Plant as also by PW-1 Naresh Kaushik, the delivery boy at Indian
Oil Petrol Pump. In fact, PW-1 also testified to the facts that the appellant
made a call from his petrol pump to number 100 to police and that the police
officers visited the petrol pump and collected relevant evidence including
the bill of telephone used by the appellant. For ready reference, we may
only take note of the testimony of PW-1 Naresh Kaushik as follows: -
“PW 1 Sh. Naresh Kaushik S/o Ram kumar Kaushik R/o VPO Vill
Kiwana Tehsil Sambhalkha Disstt. Panipat, Haryana
On S.A.
On 3.05.2009 was working as delivery boy at Indian Oil Petrol
pump in the name of Ridge view Shalimar Bagh, Opposite Haider
pur water plant. On that day at about 8:15 p.m. I was on duty there
accused prem singh present in the court today (correctly identified)
came at said petrol pump and told me that, he had come along with
his two sons for walking near Hadarpur Canal and while his both
the sons were playing near the canal they fell down in the canal and
drowned in his presence. He also told me that he tried to save his
sons by jumping in the canal and swimming to some distance but
he was unable to save them. He requested me to permit him to
make a call at no. 100. I permitted him to inform the police by dialing
no. 100 from the phone which was installed at the office of my said
petrolpump bearing no. 27492035. In my presence he again
narrated the same facts to the police on telephone.
On 06.05.2007 some police officials alongwith accused whose
name I came to know Prem Singh arrived at my petrol pump and I
informed the police that he is the person who had made the
17
telephonic call to police on 03.05.2009 at 8.15 p.m from my petrol
pump. On that day IO recorded my statement.
On 11.07.09 IO inspector Partap Singh arrived at my petrol pump
and he asked me to provide the bill of telephone no. 27492035. The
said telephone no. is in the name of Sh. Narender Kumar Mahajan
(owner of the said petrol pump). I handed over the photocopy of the
bill of said telephone no. from 01.02.09 to 31.03.2009. The said bill
was taken in police possession vide seizure memo Ex. PW1/A
signed by me and the photocopy of the said bill is marked PW1/A
signed by me at point A.
xxxxx by Ms. Sadhna Bhatia, Amicus Curie Ld. Counsel for the
accused.
Accused Prem Singh came to petrol pump on 03.05.2009 at
about 8.15 p.m. and remained their for about 5 minutes. My first
statement was recorded on 06.05.2009 at the petrol pump. No other
witness was examined at petrol pump on that day.”
6.4. The fact that the dead bodies of both the children carried various
injuries including those on neck and the medical opinion that they died due
to asphyxia as a result of manual strangulation came to be duly established
in the testimony of PW-14 Dr. V.K. Jha and the post-mortem reports Ex. P-
14/A and Ex. P-14/C. The statement of PW-14 could also be usefully
reproduced as under: -
“PW-14. Statement of Dr. V.K. Jha, Medical Officer, BJRM Hospital,
Jahangipuri, Delhi.
on SA
On 4.5.09 I conducted the postmortem of the dead body of Jitesh
s/o Prem Singh aged about 9 years sent by SI Sunil Kumar of PS
Prashant Vihar with the alleged history of found dead in Haiderpur
Water Plant.
I observed following external injuries on the dead body of the
deceased.
1. Two scratch abrasion over front of neck 1 cm. X .5 cm each.
2. Right hand has washer man appearance.
3. Both feet were wet and smeared with sand particles.
4. Lower lip was contused.
On internal examination of neck, the neck tissue was bruised on
front end side. Bruising was also observed in the midline over
18
thyroid cartilage. After postmortem examination I opined cause of
death as asphyxia as a result of manual strangulation. All the signs
were ante-mortem in nature and neck injury was sufficient to cause
death in ordinary course of nature. Time since death was
approximately 19 hours. My detailed PM report is Ex. PW14/A
which bears my signatures at point A.
Blood and viscera of the deceased was preserved in common
salt to rule out common poisoning.
At this stage, I have seen the viscera report which is Ex. PW14/B
in which no common poison have been detected. After perusal of
the viscera report and PM report I am of the final opinion the cause
of death is asphyxia as a result of manual strangulation inflicted by
other party.
On 4.05.09 I also conducted the postmortem of the dead body of
Sunny s/o Prem Singh aged about 6 years sent by SI Sunil Kumar
of PS Prashant Vihar with the alleged history of found dead in
Haiderpur Water Plant.
I observed following external injuries on the dead body of the
deceased.
1. Left hand has washerman appearance.
2. Both feet were wet and smeared with sand particles.
3. Three scratch abrasion of size 1cm x0.5 cm on front two in
numbers and on left side one in number.
On internal examination of neck, the neck tissue was bruised on
front end sides and laceration over thyroid cartilage. After
postmortem examination I opined cause of death as asphyxia as a
result of manual strangulation. All the signs were ante-mortem in
nature and neck injury was sufficient to cause death in ordinary
course of nature. Time since death was approximately 19 hours. My
detailed PM report is Ex. PW14/C which bears my signatures at
point A.
Blood and viscera of the deceased was preserved in common
salt to rule out common poisoning.
At this stage, I have seen the viscera report which is Ex. PW14/B
in which no common poison have been detected. After perusal of
the viscera report and PM report I am of the final opinion the cause
of death is asphyxia as a result of manual strangulation inflicted by
other party.
xxxxx By Ms. Sudhna Bhatia amicus curiae for accused.
It is incorrect to suggest that I have not conducted the
postmortem of dead body of Jitesh and Sunny. It is incorrect to
suggest that I have signed the report and manipulated the same at
the instance of police.”
6.5. The other prosecution witnesses had essentially been the police
personnel related with the process of investigation. Of these witnesses,
PW-18 SI Sunil Kumar asserted that upon receiving the information about
19
drowning of the children, he reached the water treatment plant where the
dead bodies were taken out from the canal and were identified by the
appellant. He further stated to have sent the dead bodies for post-mortem
examination. He also testified to the facts regarding recording of the
statements of other witnesses including mother of the deceased and, after
registration of the case, having handed over investigation to PW-17
Inspector Pratap Singh. The witness further asserted that the appellant
made a disclosure statement and memos and site plans were prepared as
per his statement. The cross-examination of this witness PW-18 Sunil
Kumar reads as under: -
“On 3.5.2009, I reached at the spot at Haiderpur Canal alongwith
constable Het Ram around 7.45 p.m. When we reached there, Prem
Singh alongwith 1-2 persons were present there. Inspector Sudhir
reached at the spot at about 8.30p.m and crime team officials
reached at the spot after sometime and remained there for about 1
hour. I recorded the statement of witnesses namely Rajender Yadav
and Sunita on 03-04/05/09 at police post Rohini. It is incorrect to
suggest that doctor has given the opinion about the cause of death
at my instance.
It is wrong to suggest that no disclosure statement was made by
the accused. It is further wrong to suggest that I recorded statement
of witnesses not as per their true version. It is wrong to suggest that
I am deposing falsely or that accused is innocent and has been
falsely implicated in this case or that I did not conduct the
investigation and did not prepare the documents are prepared by
me. It is wrong to suggest that accused was apprehended on
03.5.2009 and illegally detained in the PS and later on he was
falsely implicated in this case. It is further wrong to suggest that I
am deposing falsely.”
6.6. The Investigating Officer PW-17 Inspector Pratap Singh testified to
various processes undertaken in the course of investigation. His cross-
examination reads as under: -
20
“On 06.05.09 I reached the spot i.e., Haiderpur Water Treatment
Plant at about 3-4 am along with complainant and SI Sunil and other
staff and remained there about one hour. We were in uniform.
Accused was pointed out at a distance of 20 meters. Voltd. At that
time we were hiding behind the bushes and were not visible to the
accused. We immediately overpowered the accused. Firstly I
apprehended the accused. All the writing work was done while
sitting on the bus stand. It is correct that place of apprehension of
the accused is thorough fair. We asked three/four passer by to join
the investigation but they refused. I did not give any notice to them
and no action was taken against them. Voltd. I have no time to issue
notice to public persons as accused was in our custody. All the
memos were prepared either by me or under my supervision by the
police staff available at the spot. Ex. PW7/D was not in my
handwriting. It is wrong to suggest that accused was apprehended
on 03.05.09 from the Haiderpur water treatment plant. It wrong to
suggest that no disclosure statement was made by the accused. It
is wrong to suggest that all the proceedings were conducted while
sitting in the police station. It is wrong to suggest that the accused
is innocent who is falsely implicated in this case or that he did not
commit the alleged offence or that I did not conduct investigation
properly.”
Stand of the appellant
7. In his examination under Section 313 CrPC, the circumstances
appearing from the evidence led by the prosecution were put to the
appellant. It is noticed that the appellant either denied the circumstances
and allegations put to him or stated his want of knowledge as regards
statements of the witnesses who supported the prosecution case. As
regards his admission to the rehabilitation centre and discharge, the
appellant stated that such facts were a matter of record. Finally, his
assertion had been that he was innocent and the witnesses had deposed
falsely against him. However, he declined to lead any evidence in defence.
21
Trial Court found the appellant guilty and awarded life
imprisonment
8. After having heard the parties and having examined the record in
its totality, the Trial Court found the prosecution case amply established by
cogent and convincing chain of circumstances, pointing only to the guilt of
the appellant, who caused the death of victim children by strangulation and
also caused the evidence to disappear by throwing the dead bodies into
the canal. The appellant was, therefore, convicted of the offences under
Section 302 and 201 IPC and was sentenced accordingly.
8.1. The Trial Court summarised the chain of circumstances bringing
home the guilt of the appellant and held as under: -
“37. In the present case, admittedly, there cannot be any eye
witness to the occurance and the prosecution has put forward the
circumstances and circumstantial evidence to bring home the guilt
of the accused which certainly cannot be ignored. The prosecution
has placed on record certain circumstances to bring home guilt of
the accused regarding murdering of his sons which are as follows:
(a) Accused Prem Singh and his deceased sons namely Jitesh
and Sunny were lastly admittedly together with him till they
were alive
(b) Motive and opportunity for the accused Prem Singh to
commit murder of his sons.
(c) Conduct of the accused
(d) Medical Evidence
38. (a) Accused Prem Singh and his deceased sons Jitesh and
Sunny were lastly admittedly together with him till they were
alive: As already discussed at length, it is established and proved
on the record that the accused Prem Singh who admittedly, was the
father of the deceased Jitesh and Sunny were lastly together in their
house after his wife Sunita had gone to her maternal uncle’s house
leaving the custody of both the said children with the accused Prem
Singh and the accused himself has admitted that thereafter, he took
both the children Jitesh and Sunny to Haiderpur Canal for a walk
and to enjoy and the accused has stated that while both the children
22
were playing, they fell down in the Canal and got drowned and
though he tried to save them by jumping into the canal but he did
not succeed, hance as such it is nowhere in dispute that the
accused and the deceased children were admittedly together lastly
till they died.
(b) Motive & Opportunity for the accused Prem Singh to
commit said offence: The accused Prem Singh was certainly
having ample opportunity to strangulate his children as it was about
7.45 p.m on that day when he took them to the Canal and
admittedly, none else was present there. It is also shown from the
testimonies of the prosecution witnesses as already discussed at
length that the accused had doubt over the character of his wife
Sunita and had preconceived notion that Jitesh and Sunny were not
his sons and so, he had developed a grudge against his wife and
children and finding an appropriate opportunity as his wife was not
in the house, he took them to Haiderpur Canal with the motive to
eliminate them and asked the children to attend call of nature after
which when his elder son come first, he strangulated him and
thrown his dead body in the Canal and then his other son come
whom also he strangulated and then had thrown his dead body in
the Canal and thereafter, he himself jumped into the Canal to
pretend that he had made efforts to save them which in fact has not
yielded him any benefit.
(c) Conduct of the accused : The conduct of the accused
Prem Singh has already been discussed at length that firstly he took
both his sons to the Haiderpur Canal where he manually
strangulated them and threw their dead bodies in the Canal and
then he himself jumped into the Canal and swam for a considerable
distance and came out, so that he could tell the others that he had
made genuine efforts to save them but in vain which has been
falsified as already discussed. It is also proved on the record that
he himself narrated so to the officials of Water Treatment Plant and
then to the employee of the nearby Petrol Pump from where he also
telephonically informed the police officials and then told the same
story to the police officials. In fact, it was after the postmortem
examinations of both the children, that it was crystal clear that they
had not died of drowning but of manual strangulation prior to their
drownings which injuries were sufficient in ordinary course of nature
to cause their deaths and after trying to mislead police officials, he
joined investigation to show his bonafide which has proved futile for
the accused.
(d) Medical Evidence : As per record, though the accused Prem
Singh has stated that both the children had died of drowning and
had seen them drowning, yet their postmortem examinations
reports have falsified his version which have been duly proved on
records by Dr.V.K.Jha who has categorically deposed that both the
children were firstly manually strangulated which injuries were
antemortem in nature and were sufficient in ordinary course of
23
nature to cause their deaths and the deaths of both the deceased
were the result of such strangulation and not of drowning which
have entirely falsified the version of the accused that his sons had
died due to drowning and it is proved that they did not die of
drowning but of manual strangulation.
39. Considering the totality of the facts and circumstances, on the
basis of the evidence adduced by the prosecution, as placed on the
record and in view of above discussion, Court is of the considered
opinion that the witness examined by the prosecution are cogent,
convincing and have inspired the confidence of the court in so far
as they have come forward with true picture of the occurance and
sufficient corroboration is available on the record to ocular
testimonies of the prosecution witnesses through documentary
evidence and as such no artificiality or exaggeration is observed in
the case of the prosecution. The court is of the considered opinion
that :-
(1) There is sufficient evidence on the record as lead by the
prosecution regarding occurance and that the accused Prem Singh
had murdered his sons Jitesh and Sunny which has nowhere been
rebutted or shown to be false or manipulated and it is duly proved
that he was lastly present with both the children and had
strangulating them after which he threw their dead bodies in the
Canal and accordingly there is sufficient evidence on record from
which the inference of guilt is sought to be drawn against the
accused Prem Singh which has been cogently and firmly
established on record.
(2) Prosecution has also proved that the circumstances have
unerringly pointed towards the guilt of the accused Prem Singh
regarding committing murders of Jitesh and Sunny at the relevant
date, time and place after which he also caused the evidence to
disappear by throwing their dead bodies in the Canal at which point
of time, he intended to screen himself from Legal Punishment and
gave information in this regard which he himself knew and believed
to be false.
(3) The prosecution has also proved circumstances, which taken
cumulatively, form a chain so complete that there is no doubt at all,
if the accused Prem Singh had not murdered his sons namely Jitesh
and Sunny at the relevant date, time and place.
40. (a) In view of foregoing discussion, the court is of the considered
opinion that as per material placed on the record, the witnesses
examined by the prosecution are cogent, convincing and inspire
confidence of the court in as far as they have come forward with
true and clear picture of the occurance and infact and sufficient
corroboration is available on record on all material aspects to the
ocular versions of the witnesses not only from each other but even
from the documentary evidence which has led sufficient support to
24
the witness alongwith medical evidence wherein Dr. V.K.Jha has
categorically opined and prayed that both the children Jitesh and
Sunny had not died due to drowning but died due to the manual
strangulation which injuries were antemortem in nature which were
sufficient in ordinary course of nature to cause their deaths which
have nowhere been shown to be false or manipulated and the
testimonies of prosecution witnesses do not suffer any inherent or
grave infirmities which go to the root of the matter and shake their
basic versions.
(b) Accordingly, considering the above, in the given
circumstances and on the basis of the material as placed on the
record, the only irresistible conclusion that can be drawn is that the
accused Prem Singh had murdered both this sons namely Jitesh
and Sunny by manually strangulated them and caused their deaths
which injuries have been proved to be antemortem and sufficient in
ordinary course of nature to cause their deaths and it is also proved
on the record that after murdering them, he had thrown their dead
bodies in the canal, so that the evidence regarding commission of
his offence of murdering his sons is destroyed with intention to save
and screen himself from the legal punishment. Since prosecution
has succeeded in bringing home guilt of the accused on record
beyond reasonable doubt, accordingly, accused Prem Singh is
convicted for committing offences as punishable under section
302/201 IPC. Let he be heard on the point of sentence.”
8.2. The Trial Court further heard the parties on the question of
sentence. The submissions on behalf of the appellant in this hearing had
been for leniency in view of the facts that he had no criminal antecedents
and had been undergoing trial since the year 2009; and further that he had
a family to support and was the sole bread earner. The Trial Court, in its
order dated 08.09.2011, after taking note of all the facts and circumstances
of the case and the nature of crime committed by the appellant, considered
it appropriate to award the necessary punishments and, accordingly,
sentenced him to rigorous imprisonment for life with fine of Rs. 10,000/-
and default stipulation for the offence punishable under Section 302 IPC;
and to rigorous imprisonment for a period of 3 years with fine of Rs. 2000/-
25
and default stipulation for the offence punishable under Section 201 IPC,
with concurrent running of punishments.
High Court dismissed the appeal filed by the appellant
9. In challenge to the conviction before the High Court, it was
essentially contended on behalf of the appellant that all the independent
witnesses did not support the prosecution case and there were missing
links in the chain of events, particularly when the allegations of strained
relationship of the appellant and his wife as also the allegations of the
appellant doubting the chastity of his wife having fallen to the ground. It
was contended that in the given circumstances, there were no reason for
which the appellant would have killed his own children. Per contra, it was
submitted on behalf of the respondent-State that the scientific evidence
clearly established the fact that the children died because of manual
strangulation and not on account of drowning; and when they were lastly
seen in the company of the appellant, burden was heavy on him to explain
the whereabouts of his children as also the manner in which they came to
be strangulated. It was contended that rather than discharging this burden,
the appellant gave false information about accidental drowning of the
children, as clearly established by independent witnesses.
9.1. The High Court again analysed the entire evidence on record and,
while rejecting the contentions that the appellant was falsely implicated or
that there were material discrepancies in the prosecution case, dismissed
26
the appeal by its impugned judgment and order dated 29.02.2016 while
observing, inter alia , as under: -
“52. Having discussed the testimonies of material witnesses in
detail in the paragraphs aforegoing, we may note that PW-4,
Mahesh Kumar Sharma and PW-6, Komal Ram are material
witnesses. Both the witnesses have testified that they were on duty
at Haidarpur Water Treatment Plant on the fateful day, i.e. on
03.05.2009. Both have also testified that the appellant had first
approached Mahesh Kumar and informed him that he had come to
the canal along with his two sons who were playing near the canal,
they fell down and drowned. As per the testimony of Mahesh Kumar,
appellant had met him at about 7:45 p.m. and Mahesh Kumar had
passed over this information regarding recovery of dead bodies at
number 100. On the truthfulness of this statement, there has been
no cross-examination on behalf of the appellant. PW-6, Komal Ram
has also testified on the lines of PW-4. A very important factor which
is to be noticed at this stage is that there is no cross-examination
by the appellant regarding his not having gone to canal along with
sons and having not informed PW-4 and PW-6 regarding the
drowning of his sons who were with him and had drowned while
playing.
53. Naresh Kaushik, PW-1 has testified that on 03.05.2009 when
he was working as a delivery boy at Indian Oil Petrol Pump,
Shalimar Bagh opposite Haiderpur Water Plant at about 8:25 p.m.,
the appellant came to him and told him that he was walking near
Haiderpur Canal with his sons and while his both the sons were
playing, they fell down in the canal and drowned despite his having
tried to save them by jumping in the canal. Appellant requested him
to allow him to make a call at 100 number. In his presence, on
telephone number 27492035, the appellant narrated the above
facts to the police officials. On 06.05.2009, he had identified the
appellant in the presence of the police officials as the person who
had made a call at 100 number on 03.05.2009 at 8:15 p.m. Bill of
telephone number 27492035 Ex.PW1/A and the testimony of PW-1
stand established that a phone call was made by the appellant at
100 number.
54. PW-1, Naresh Kaushik had also identified the appellant who
had made phone call from his phone. We may, at this stage, also
note that although the wife of the appellant had turned hostile, but
as far as the children last seen in the company of the appellant is
concerned, it stands established by the testimony of PW-9, Sunity
Yadav, wife of the appellant. She testified that “on the day of
incident, I went to the house of my maternal uncle as my Nani was
ill leaving my both the sons with their father/accused” .
27
55. In view of the testimonies of PWs-1, 4, 6 and 9, in our view, it
stands firmly established that the children were with their father as
per the testimony of PW-9. As per the testimonies of PWs-1, 4 and
6, the appellant had himself informed them that his children had
come with him at the canal and while playing, they have got
drowned. The testimonies of PWs-1, 4 and 6 on this aspect has
remained unrebutted.
56. Dr. V.K. Jha, PW-14, has testified that cause of death is
asphyxia as a result of manual strangulation and all the injuries were
ante-mortem in nature and neck injury on their persons was
sufficient to cause their death in the ordinary course of nature. The
evidence of Dr. Jha clearly points out that the children did not die
due to drowning but on account of manual strangulation. Neither the
appellant has been able to make any dent in the examination of this
witness nor there is any reason for us to disbelieve the testimony of
Dr. V.K. Jha.
57. The motive stands established. Upon reading of the testimony
of PW-7, Mahender Kumar Yadav, the deceased were the sons of
his niece Sunita. He has testified that the appellant used to
comment on the chastity of her niece Sunita and accused her of bad
character. He was in the habit of drinking liquor and beating Sunita.
This witness has also testified that the appellant used to comment
that the children did not belong to him but to someone else and, in
fact, had attempted to kill the children in the park by giving them
electric shock. However, the children were saved by their mother.
In the past, Sunita had remained in the house of PW-7 for 5-6
months, however, she joined the company of her husband but he
continued to misbehave with her and used to talk inappropriately
and accuse her of indulging in sexual activities. Even on
03.05.2009, as per the testimony of PW-7, the mother of the
deceased had come to his house and informed him that appellant
was quarrelling with her. He had tried to reconcile the matter, but
could not succeed. On the same day, he received a phone call by
the police that both the children of his niece had died by drowning
in the canal. PW-7 has further testified that he had suspected that
both the children had not drowned on their own but they were killed
by the appellant.
58. PW-8, Rajender Yadav has also testified that his niece was
married to the appellant and whenever Sunita came to their house,
she complained that appellant used to abuse her and beat her as
well as the children. On learning the news about death of both the
children, this witness also testified that he had strong suspicion that
appellant had drowned his children on the issue of character of
Sunita.
59. In view of the testimonies of PW-7 and PW-8, motive stands
clearly established that the appellant used to beat his wife and
children under the influence of liquor. He suspected that the children
28
did not belong to him but belong to someone else. The appellant
informed PW-1, PW-4 and PW-6 that the children had drowned,
whereas as per the testimony of PW-14, Dr. V.K. Jha, external
injuries were found on the dead bodies and the cause of death was
manual strangulation. Thus, in our view, the conduct of the
appellant also points towards his guilt.
60. In the light of the testimonies discussed above, the submission
of learned counsel for the appellant that the appellant has been
falsely implicated or that there are material discrepancies in their
testimonies or the fact that the wife of the appellant has turned
hostile thus there is no ground to convict the appellant, are all
without any force. The Trial Court has passed a well-reasoned order
taking into consideration the testimonies of all the material
witnesses which have been discussed hereinabove.
61. We find that there is no merit in the present appeal and the
same is accordingly dismissed.”
Rival Submissions
10. Assailing the judgment and order aforesaid, learned counsel for the
appellant has put forward a variety of submissions to argue that conviction
of the appellant remains unsustainable. The learned counsel has
contended that the chain of circumstances in this case is not complete,
particularly when the allegations of strained relationship of the appellant
and his wife have not been proved and in any case, the prosecution has
failed to establish motive for the appellant to murder his own children; that
the appellant was incapable of understanding the nature of his act when
admittedly he was in the habit of consuming liquor, was admitted to
rehabilitation centre, and his discharge was taken against the advice of the
centre; that the Trial Court failed in its duty to examine the mental capacity
of the appellant in terms of Section 329 CrPC and hence, the entire trial
stood vitiated; and that in any case, mens rea could not be imputed on the
29
appellant, who deserves to be given benefit of doubt or at least the benefit
of the Exceptions to Section 300 IPC.
10.1. In the first place, learned counsel for the appellant has contended
that in case of circumstantial evidence, there ought to be a complete chain
of circumstances pointing towards nothing else but guilt of the accused;
and in such cases, motive is of critical importance. In the present case,
according to the learned counsel, the motive set up by the prosecution
about the alleged strained relationship of the appellant with his wife was
not a motive strong enough for the appellant to commit the murder of his
children and, in any event, wife of the appellant, PW-9, did not support the
case of the prosecution regarding such allegations. The learned counsel
would, therefore, contend that an important link in the chain of
circumstances, i.e., motive, having not been established, the appellant
deserves to be acquitted.
10.2. The main plank of the submissions on behalf of the appellant had
been with reference to his alleged addiction to liquor and his admission to
the rehabilitation centre. Learned counsel for the appellant would argue,
particularly with reference to the statements of PW-2 Puran Singh, cousin
of the appellant, and PW-3 Jagbir, manager of rehabilitation centre, that
the appellant was undoubtedly undergoing treatment for his addiction to
liquor and was discharged against advice prematurely; and, the evidence
on record, read as a whole, lead to the position that the appellant could not
have been treated as a person capable of understanding the nature of his
30
act. According to the learned counsel, even if the evidence of PW-2 and
PW-3 may not be sufficient to give the benefit of Section 84 IPC, it definitely
gives rise to a doubt with regard to the mental capacity of the appellant. In
this regard, the learned counsel has also referred to the additional
documents placed on record to the effect that even post-conviction, the
appellant has been treated for his mental condition; he was distinguished
as a psychiatric case; and was admitted to the Central Jail Hospital for
treatment.
10.3. With reference to the aforesaid factors concerning the mental
capacity of the appellant, learned counsel would submit that the entire trial
in the present case stands vitiated, for the Trial Court having omitted to
examine the capacity of the accused-appellant in terms of Section 329
CrPC. Learned counsel has also referred to the decision of Gujarat High
Court in the case of State of Gujarat v. Manjuben : 2019 SCC OnLine
Guj 6937 and has submitted that, in the present case, looking to the
background factors concerning mental capacity of the appellant appearing
in evidence, it was the duty of the Trial Court to examine if he was of
unsound mind and consequently incapable of making his defence.
10.3.1. Learned counsel has further argued that when the prosecution and
the investigating agency came across the evidence in relation to the mental
condition of the appellant, it was their duty to have him medically examined
and to place the evidence before the Trial Court. This having not been
done, the infirmity, according to the learned counsel, ought to result in
31
acquittal of the appellant. In this regard, the learned counsel has also
referred to a decision of Bombay High Court in the case of Ajay Ram
Pandit v. State of Maharashtra : 2022 SCC OnLine Bom 3920 .
10.3.2. Learned counsel for the appellant has further submitted that
although in the present case neither the public prosecutor nor the defence
counsel raised the issue of mental capacity of the appellant, the Trial Court
was under an obligation to ascertain his mental capacity, particularly in
view of the prima facie evidence available before it. According to the
learned counsel, it was the duty of the Trial Court to have made such an
assessment and for that purpose, conclusive evidence was not required
and presence of some doubt itself was sufficient. The necessary enquiry
having not been made, the trial stands vitiated and consequently, the
benefit ought to be extended to the accused-appellant. The learned
counsel has also referred to the decision in A.R. Antulay v. R.S. Nayak :
(1988) 2 SCC 602 to submit that the act of the Court should not harm a
litigant. The learned counsel has even referred to a decision of the
Supreme Court of the State of Delaware in Eric Dolby v. State of
Delaware decided on 02.03.2012 to submit that therein the accused was
permitted to raise the defence of competence even though it was not as
such raised by the counsel and has submitted that the Trial Court ought to
have ordered examination of the accused with regard to the
propensity/capacity.
32
10.3.3. Learned counsel has extended his submissions to the effect that
since the evidence of PW-2 and PW-3 gave rise to a doubt in relation to
the mental capacity of the appellant, the Trial Court ought to have given an
opportunity to the appellant to explain the circumstances of such
normality/abnormality at the time of his examination under Section 313
CrPC because these aspects had a bearing on his capacity and ultimately
on his defence. The learned counsel has submitted with reference to an
observation of this Court in the case of Rahul v. State of Delhi, Ministry
of Home Affairs and Anr . : 2022 SCC OnLine SC 1532 , that a Judge is
not expected to be a passive umpire but is supposed to actively participate
in the trial, and to question the witnesses to reach to a correct conclusion.
The learned counsel would submit that, in the present case, the witnesses
examined to establish the guilt were not cross-examined on the relevant
factors, particularly as regards mental capacity of the appellant, which
ought to have been ensured by the Trial Court.
10.4. In the last limb of submissions, learned counsel for the appellant
has submitted that even if it be taken that the evidence on record did not
establish conclusively the mental incapacity of the appellant, it indeed
raised a reasonable doubt as regards existence of all the ingredients of
Section 300 IPC, including mens rea and hence, the appellant was entitled
to be extended the benefit of doubt. The learned counsel would also submit
in the alternative that the conviction, if at all, ought to have been under
Section 304 IPC. In this regard, the learned counsel has referred to a
33
decision of Calcutta High Court in the case of King-Emperor v. Tincouri
Dhopi : 1922 SCC OnLine Cal 90 to submit that therein the mental state
of the appellant, who was a habitual ganja smoker, was taken into
consideration and accordingly, capital sentence was converted to
transportation for life to meet the ends of justice.
10.5. Therefore, according to the learned counsel for the appellant, in
view of serious infirmity in the trial, benefit of doubt deserves to be given to
the appellant and in the alternative, the conviction deserves to be converted
to one under Section 304 IPC and sentence deserves to be reduced to the
period of imprisonment already undergone.
11. While refuting the submissions made on behalf of the appellant,
learned counsel for the respondent-State has argued that the
circumstantial evidence on record undoubtedly lead to the conclusion of
guilt of the appellant and no case for interference is made out.
11.1. Learned counsel for the respondent-State has emphatically
submitted that the fundamental fact remains rather undeniable that the
appellant was last person in the company of the deceased children and is
amply established by the deposition of PW-1, the attendant at the petrol
pump, and PW-4 and PW-6, the personnel on duty at the water treatment
plant. This apart, the fact that the children were in the company of the
appellant is established even in the testimony of PW-9, wife of the
appellant. Learned counsel would submit that there is nothing on record to
suggest the presence of any other person with the deceased children at
34
the time and place of occurrence; and the appellant has not shown his
presence at any other place or his having parted with the company of the
deceased. Learned counsel has further argued that the medical evidence
of PW-14 leaves nothing to doubt that the cause of death of the victim
children had been asphyxia as a result of manual strangulation. Thus,
according to the learned counsel, in the given set of circumstances, when
the death of the victim children was homicidal in nature and the appellant
rather attempted to project a false narrative that they fell into the canal
accidentally, the concurrent findings of his conviction cannot be said to be
suffering from any infirmity.
11.2. Learned counsel has referred to Section 106 of the Indian Evidence
Act and a decision of this Court in the case of Sabitri Samantaray v. State
of Odisha : 2022 SCC OnLine SC 673 to submit that in the present case,
the appellant having failed to explain the circumstances which were within
his special knowledge, particularly after the prosecution had clearly
established the basic facts about the deceased being lastly in the company
of the appellant and that their death was homicidal in nature with manual
strangulation, the want of explanation of the appellant definitely provides a
strong link in the chain of events.
11.3. As regards motive, learned counsel for the respondent-State has
particularly referred to the testimonies of PW-7 and PW-8 to submit that the
facts were clearly established that the relationship between the appellant
and his wife was strained; and the reason for such strained relations was
35
the appellant’s constant suspicion over the character of his wife and in turn,
his doubts on the paternity of the victim boys. Thus, according to the
learned counsel, a case of strong motive for killing of the victim children is
also established where the appellant suspected them to not be his sons.
11.4. As regards the plea of unsoundness of mind of the appellant,
learned counsel for the respondent-State has submitted that such a plea
was never raised in the defence or in evidence or in appeal or even in the
petition filed before this Court. Learned counsel has further submitted that
as a matter of legal principle, if previous history of accused person’s
insanity is revealed, the investigating officer is duty bound to subject him to
medical examination and to submit the evidence to the Court; and failure
to do so may amount to serious infirmity which may lead to benefit of doubt
to the accused but, in such cases, the onus of producing evidence with
respect to the conduct and mental condition is on the accused and the
Court is not expected to presume to the contrary. While relying upon a
decision of this Court in the case of Bapu alias Gujraj Singh v. State of
Rajasthan : (2007) 8 SCC 66 , learned counsel has submitted that the plea
of unsoundness of mind qua the appellant is untenable not just owing to
the fact that no such plea or evidence was placed during the trial or even
before the High Court but also because the appellant had no previous
history of insanity as such. In this regard, learned counsel has referred to
the testimony of PW-3, the manager of rehabilitation centre to the effect
that during the period of admission, the appellant’s behaviour was like an
36
ordinary prudent man and he was never administered any medicine for
mental illness, for no such illness having been observed nor any previous
history having been given by his family members.
11.5. Learned counsel for the respondent-State has also submitted that
the plea of unsoundness of mind, if at all, could only be raised by the
defence to rule out the forming of mens rea but a case of purported
subsequent mental illness cannot be raised to invoke the exceptions of
Section 300 IPC. Thus, according to the learned counsel, reference to the
treatment of the appellant post-conviction in psychiatry ward because of
the complaints of abnormal behaviour is of no avail to the appellant.
Learned counsel has referred to decisions of this Court in Shrikant
Anandrao Bhosale v. State of Maharashtra : (2002) 7 SCC 748 and
Dahyabhai Chhaganbhai Thakkar v. State of Gujarat : AIR 1964 SC
1563.
11.6. Learned counsel for the respondent-State has further submitted
that the suggestions to the effect that the appellant might be having
requisite knowledge but was lacking an intention to commit the crime
remains untenable for the reasons, inter alia, that the appellant
meticulously planned the crime by taking his children to the canal at a time
when he was vested with their sole custody in the absence of his wife; he
mercilessly strangulated the children one by one and if at all an opportunity
of realisation were to be visualised, at least after killing the first child he had
ample time and opportunity to restrain himself and not to kill the other one.
37
This apart, according to the learned counsel, after gruesome killing of the
two children, the appellant enacted an elaborate ploy by interacting with
the persons in the vicinity and attempted to create a false narrative of
drowning of the children. In the given set of facts, according to the learned
counsel, the appellant’s case does not fall under any of the exceptions
contained in Section 300 IPC and hence, the concurrent findings against
him call for no interference.
The scope and width of this appeal
12. As noticed, the Trial Court and the High Court have concurrently
recorded the findings in this case that the prosecution has been able to
establish the chain of circumstances leading to the only conclusion that the
appellant is guilty of the offences of murder of his sons and causing
disappearance of evidence. Though the parameters of examining the
matters in an appeal by special leave under Article 136 of the Constitution
of India have been laid down repeatedly by this Court in several of the
decisions but, having regard to the submissions made in this case, we may
usefully reiterate the observations in the case of Pappu v. The State of
Uttar Pradesh: 2022 SCC OnLine SC 176 wherein, after referring to
Articles 134 and 136 of the Constitution of India and Section 2 of the
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970
as also with a detailed reference to the relevant decisions, this Court has
summed up the subtle distinction in the scope of a regular appeal and an
appeal by special leave in the following words: -
38
“ 20 .…. In such an appeal by special leave, where the Trial Court
and the High Court have concurrently returned the findings of fact
after appreciation of evidence, each and every finding of fact cannot
be contested nor such an appeal could be dealt with as if another
forum for reappreciation of evidence. Of course, if the assessment
by the Trial Court and the High Court could be said to be vitiated by
any error of law or procedure or misreading of evidence or in
disregard to the norms of judicial process leading to serious
prejudice or injustice, this Court may, and in appropriate cases
would, interfere in order to prevent grave or serious miscarriage of
justice but, such a course is adopted only in rare and exceptional
cases of manifest illegality. Tersely put, it is not a matter of regular
appeal. This Court would not interfere with the concurrent findings
of fact based on pure appreciation of evidence nor it is the scope of
these appeals that this Court would enter into reappreciation of
evidence so as to take a view different than that taken by the Trial
Court and approved by the High Court.”
12.1. Keeping the principles aforesaid in view, we may examine if the
concurrent findings call for any interference in this case while reiterating
that wholesome reappreciation of evidence is not within the scope of this
appeal, even though we have scanned through the entire evidence in order
to appropriately deal with the contentions urged before us.
The principles relating to circumstantial evidence; burden of
explanation; hostile witness; and motive
13. Learned counsel for the appellant has argued that there had been
several shortcomings in the prosecution case and that the relied upon
factors, including the medical evidence and the so-called falsity of
explanation of the appellant, are not sufficient to arrive at a finding of guilt
against the appellant, particularly when the allegations relating to motive
have not been established. While dealing with such submissions, we may
usefully take note of the basic principles applicable to the case.
39
13.1. The principles explained and enunciated in the case of Sharad
Birdhichand Sarda v. State of Maharashtra : (1984) 4 SCC 116 remain
a guiding light for the Courts in regard to the proof of a case based on
circumstantial evidence. Therein, this Court referred to the celebrated
decision in Hanumant v. State of Madhya Pradesh: AIR 1952 SC 343
and deduced five golden principles of proving a case based on
circumstantial evidence in the following terms: -
“ 152 ............ It may be useful to extract what Mahajan, J. has laid
down in Hanumant case:
“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 in the first instance
be fully established, and all the facts 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.”
153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an
accused can be said to be fully established:
( 1 ) the circumstances from which the conclusion of guilt is to be
drawn should be fully established.
It may be noted here that this Court indicated that the circumstances
concerned “must or should” and not “may be” established. There is
not only a grammatical but a legal distinction between “may be
proved” and “must be or should be proved” as was held by this Court
6
in Shivaji Sahabrao Bobade v. State of Maharashtra where the
observations were made:
6
(1973) 2 SCC 793.
40
“Certainly, it is a primary principle that the accused must
be and not merely may be guilty before a court can convict
and the mental distance between ‘may be’ and ‘must be’ is
long and divides vague conjectures from sure conclusions.”
( 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.
154. These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on circumstantial
evidence.”
13.1.1. It is also pertinent to notice that in the said case of Sharad
Birdhichand Sarda , this Court also enunciated the principles for using the
false explanation or false defence as an additional link to complete the
chain of circumstances in the following terms: -
“ 158 . It may be necessary here to notice a very forceful
argument submitted by the Additional Solicitor General relying on a
7
decision of this Court in Deonandan Mishra v . State of Bihar to
supplement his argument that if the defence case is false it would
constitute an additional link so as to fortify the prosecution
case……..
159 . It will be seen that this Court while taking into account the
absence of explanation or a false explanation did hold that it will
amount to be an additional link to complete the chain but these
observations must be read in the light of what this Court said earlier
7
AIR 1955 SC 801: (1955) 2 SCR 570, 582.
41
viz. before a false explanation can be used as additional link, the
following essential conditions must be satisfied:
( 1 ) various links in the chain of evidence led by the
prosecution have been satisfactorily proved ,
( 2 ) the said circumstance points to the guilt of the accused
with reasonable definiteness, and
( 3 ) the circumstance is in proximity to the time and
situation.
160 . If these conditions are fulfilled only then a court can use a
false explanation or a false defence as an additional link to lend an
assurance to the court and not otherwise.……..”
14. Moving on to the other applicable provisions and principles, we may
usefully take note of Section 106 of the Evidence Act, casting burden of
proving a fact especially within knowledge of any person, and a few
relevant decisions in regard to its operation qua an accused.
14.1. Section 106 of the Evidence Act reads as under: -
“ 106. Burden of proving fact especially within knowledge. —
When any fact is especially within the knowledge of any person, the
burden of proving that fact is upon him.”
14.2. In the case of Trimukh Maroti Kirkan v. State of Maharashtra :
(2006) 10 SCC 681, the accused was charged of the murder of his wife;
there had been allegations of ill-treatment of the deceased-wife by the
accused-husband; and though the victim had been killed by strangulation,
the information given to her parents as also to all in the village was that she
had died on account of snakebite. After taking note of the facts of the case,
this Court exposited on the principles governing the assessment of
circumstantial evidence, the operation of Section 106 of the Evidence Act,
42
and the effect of want of necessary explanation or giving of false
explanation by the accused, inter alia , in the following passages: -
“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.
8
(See Stirland v. Director of Public Prosecutions — quoted with
9
approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh .)
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 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. | |
*
21. In a case based on circumstantial evidence where no
eyewitness account is available, there is another principle of law
which must be kept in mind. The principle is that when an
incriminating circumstance is put to the accused and the said
accused either offers no explanation or offers an explanation which
is found to be untrue, then the same becomes an additional link in
8
1944 AC 315: (1944) 2 All ER 13 (HL).
9
(2003) 11 SCC 271: 2004 SCC (Cri) 135.
43
| the chain of circumstances to make it complete. This view has been | |
|---|
| taken in a catena of decisions of this Court.” | |
14.3. The case of Sudru v. State of Chhattisgarh : (2019) 8 SCC 333
had been the one where the appellant was charged of the murder of his
son in his house; and the principal prosecution witnesses, including wife of
the appellant, turned hostile to the prosecution but, the facts did come out
of their testimony that the deceased was left alone in the company of the
appellant and the next day, the deceased was found dead. Taking note of
the salient features of the case and operation of the requirements of
Section 106 of the Evidence Act, this Court observed, as regards
consideration of the relevant part of evidence of a hostile witness and the
effect of failure on the part of the accused to discharge his burden, as
follows: -
“ 6. No doubt, in the present case all the witnesses who are related
to the accused and the deceased have turned hostile. PW 1 Janki
Bai, wife of the appellant and the mother of the deceased has also
turned hostile. However, by now it is settled principle of law, that
such part of the evidence of a hostile witness which is found to be
credible could be taken into consideration and it is not necessary to
discard the entire evidence. ..
*
| “8. In this view of the matter, after the prosecution has established | |
|---|
| the aforesaid fact, the burden would shift upon the appellant under | |
| Section 106 of the Evidence Act. Once the prosecution proves, that | |
| it is the deceased and the appellant, who were alone in that room | |
| and on the next day morning the dead body of the deceased was | |
| found, the onus shifts on the appellant to explain, as to what has | |
| happened in that night and as to how the death of the deceased has | |
| occurred. | |
14.4. Apart from the above, we may also usefully take note of the recent
decision of this Court in the case of Sabitri Samantaray (supra). Therein,
with reference to Section 106 of the Evidence Act, a 3-Judge Bench of this
44
Court noted that if the accused had a different intention, the facts are
especially within his knowledge which he must prove; and if, in a case
based on circumstantial evidence, the accused evades response to an
incriminating question or offers a response which is not true, such a
response, in itself, would become an additional link in the chain of events.
The relevant part of the enunciation by this Court reads as under: -
“ 19 . Thus, although Section 106 is in no way aimed at relieving the
prosecution from its burden to establish the guilt of an accused, it
applies to cases where chain of events has been successfully
established by the prosecution, from which a reasonable inference
is made out against the accused. Moreover, in a case based on
circumstantial evidence, whenever an incriminating question is
posed to the accused and he or she either evades response, or
offers a response which is not true, then such a response in itself
becomes an additional link in the chain of events.”
15. As regards the relevancy of motive in a case based on
circumstantial evidence, the weight of authorities is on principles that if
motive is proved, that would supply another link in the chain of
circumstantial evidence but, absence of motive cannot be a ground to reject
the prosecution case, though such an absence of motive is a factor that
weighs in favour of the accused. In Anwar Ali and Anr. v. State of
Himachal Pradesh : (2020) 10 SCC 166, this Court has referred to and
relied upon the principles enunciated in previous decisions and has laid
down as under: -
“ 24. Now so far as the submission on behalf of the accused that in
the present case the prosecution has failed to establish and prove
the motive and therefore the accused deserves acquittal is
concerned, it is true that the absence of proving the motive cannot
be a ground to reject the prosecution case. It is also true and as
45
10
held by this Court in Suresh Chandra Bahri v. State of Bihar that
if motive is proved that would supply a link in the chain of
circumstantial evidence but the absence thereof cannot be a ground
to reject the prosecution case. However, at the same time, as
11
Babu
observed by this Court in , absence of motive in a case
depending on circumstantial evidence is a factor that weighs in
favour of the accused. In paras 25 and 26, it is observed and held
as under:-
12
“ 25 . In State of U.P. v. Kishanpal , this Court examined
the importance of motive in cases of circumstantial
evidence and observed:
‘ 38 . … the motive is a thing which is primarily
known to the accused themselves and it is not
possible for the prosecution to explain what
actually promoted or excited them to commit the
particular crime.
39 . The motive may be considered as a
circumstance which is relevant for assessing the
evidence but if the evidence is clear and
unambiguous and the circumstances prove the
guilt of the accused, the same is not weakened
even if the motive is not a very strong one……...’
26 . This Court has also held that the absence of motive in a case
depending on circumstantial evidence is a factor that weighs in
13
favour of the accused. (Vide Pannayar v. State of T.N. ).””
Application of the relevant principles to the facts of this case
16. Keeping the aforesaid principles in view, when we examine the
facts of this case and the concurrent findings of the Trial Court and the High
Court, we find no substance in the contentions urged by learned counsel
for the appellant.
16.1. It is amply established on record that the deceased children, aged
9 years and 6 years respectively, died an unnatural death and though the
bodies were retrieved from canal, it had not been a case of their drowning
10
1995 Supp (1) SCC 80: 1995 SCC (Cri) 60.
11
(2010) 9 SCC 189: (2010) 3 SCC (Cri) 1179.
12
(2008) 16 SCC 73: (2010) 4 SCC (Cri) 182.
13
(2009) 9 SCC 152: (2009) 3 SCC (Civ) 638: (2010) 2 SCC (Cri) 1480.
46
but, as specifically proved by the post-mortem reports and the testimony of
PW-14 Dr. V.K. Jha, the cause of their death had been asphyxia as a result
of manual strangulation. There is nothing on record to disbelieve the
testimony of PW-14 Dr. V.K. Jha. The only line of cross-examination of this
witness had been as if he did not carry out post-mortem examination of the
dead bodies of the victim children and that he manipulated the report at the
instance of police. We are unable to find any substance or logic in this line
of cross-examination. The fact that the dead bodies of the victim children
were indeed retrieved from canal is hardly a matter of doubt and has indeed
been established in the testimony of PW-18 SI Sunil Kumar, PW-17
Inspector Pratap Singh as also other private witnesses, including the
relatives of the appellant and his wife. It had been too far-stretched to
suggest that the medical officer did not examine the dead bodies of the
victim children, as sent to him by the investigating officer or his having
manipulated the report. The evidence available on record, taken as a
whole, leaves nothing to doubt that the victim children had been subjected
to manual strangulation which resulted in their death. Obviously, their dead
bodies were thereafter thrown in the canal to project as if it were a case of
drowning.
16.2. The fact that the deceased children, when alive, were lastly in the
company of the appellant alone is also not of much doubt or debate. In this
regard, even before looking at any other evidence, suffice it to notice that
PW-9 Sunita Yadav, wife of the appellant, who otherwise did not support
47
the prosecution case, clearly stated the crucial fact that on the day of
incident, the children were left by her with the appellant. She indeed stated
that ‘on the day of incident, I went to the house of my maternal uncle as my
Nani was ill leaving my both the sons with their father/accused’ . She later
on received the call from the police station about demise of her sons.
Therefore, it remains rather undeniable that the deceased children were
lastly in the company of the appellant alone.
16.3. In regard to the chain of circumstances in the present case, the
statements of three independent witnesses PW-1 Naresh Kaushik, delivery
boy at the Petrol Pump as also PW-4 Mahesh Kumar Sharma and PW-6
Komal Ram, the personnel in-charge at the Water Treatment Plant assume
significance, who testified to the facts that the appellant did visit them
immediately after the incident and specifically stated before them that his
sons had accidentally fallen into the canal. There is nothing on record to
disbelieve the testimony of these witnesses. We have reproduced
hereinbefore the statement of PW-1 Naresh Kaushik and it is noticeable
that there had not been anything in his cross-examination which could
create any doubt on his narration. Similar had been the position as regards
the testimony of PW-4 and PW-6. In fact, PW-4 Mahesh Kumar Sharma
was not cross-examined at all; and the cross-examination of PW-6 had also
essentially been of a suggestion as if the accused-appellant did not meet
him on the given day. When the statements of independent witnesses PW-
1, PW-4 and PW-6 are read together with the statement of PW-9, wife of
48
the appellant, not only the circumstance of the deceased children being
lastly in the company of the accused-appellant is established but, further to
that, it is also established that the appellant attempted to create a false
narrative of accidental drowning of the children. This false narrative, in the
facts of the present case, becomes another strong link in the chain of
circumstances.
16.4. When the facts established by the evidence on record and the
surrounding factors are put together, the chain of circumstances had
unfailingly been that the deceased children were lastly seen alive in the
company of the appellant; they died because of manual strangulation and
obviously, their death was homicidal in nature; their dead bodies were
recovered from the canal; and the appellant attempted to project that they
had accidentally fallen into the canal. In the given set of circumstances,
when the deceased children were in the company of the appellant, who
was none else but their father and when their death was caused by manual
strangulation, the burden, perforce, was heavy upon the appellant to clarify
the facts leading to the demise of his sons, which would be presumed to
be specially within his knowledge. Thus, the principles of Section 106 of
the Evidence Act operate heavily against the appellant.
16.4.1. It is, of course, the duty of prosecution to lead the primary evidence
of proving its case beyond reasonable doubt but, when necessary evidence
had indeed been led, the corresponding burden was heavy on the appellant
in terms of Section 106 of the Evidence Act to explain as to what had
49
happened at the time of incident and as to how the death of the deceased
occurred. There had not been any explanation on the part of the appellant
and, as noticed, immediately after the incident, he attempted to create a
false narrative of accidental drowning of the children. There had not been
any specific response from the appellant in his statement under Section
313 CrPC either.
17. Taking all the facts and factors together, the chain of circumstances
leading only to the hypothesis of the guilt of the appellant has been duly
visualised and analysed by the Trial Court as also by the High Court. That
being the position, learned counsel for the appellant has endeavoured to
submit that an important link in the chain of circumstances, i.e., motive, has
not been established and in that regard, reliance has particularly been
placed on the statement of the wife of the appellant PW-9 Sunita Yadav,
who did not support the prosecution allegations about strained relationship
of the appellant and herself.
17.1. As noticed, motive, when proved, supplies additional link in the
chain of circumstantial evidence but, absence thereof cannot, by itself, be
a ground to reject the prosecution case; although absence of motive in a
case based on circumstantial evidence is a factor that weighs in favour of
the accused.
17.2. The question of motive in the present case, in our view, cannot be
examined only with reference to the testimony of the wife of the appellant
who has, even while admitting that she left the children in the company of
50
the appellant and thereafter heard only about their demise, chosen not to
support the accusations against the appellant. However, her testimony is
contradicted by at least three prosecution witnesses with two of them, PW-
7 Mahender Kumar Yadav and PW-8 Rajender Yadav being her uncles,
who maintained that there were strained relations of the appellant and his
wife and that the appellant doubted the character of his wife as also the
paternity of the children. Even PW-5 Bishan Singh, brother of the appellant,
though attempted to depose against the prosecution case but indeed
testified to the fact that there had been strains in the relationship of the
appellant and his wife. The submission that strained relationship of
appellant with his wife may not provide sufficient motive for killing the
children cannot be accepted for the reason that the motive projected in the
present case had been that the appellant doubted the paternity of the
deceased children and suspected that they were not his sons.
17.3. We are clearly of the view that when the evidence on record
unambiguously proves the guilt of the accused-appellant, the factor relating
to motive cannot displace or weaken the conclusions naturally flowing from
the evidence. Moreover, the present case cannot be said to be of want of
motive altogether. Differently put, in our view, when all the facts and
circumstances are taken together, the present one is not a case where
there had been any missing link in the chain of circumstances, leading only
to the conclusion of the guilt of the appellant.
51
18. As noticed, the Trial Court and the High Court have concurrently
recorded the findings that the prosecution has been able to establish the
chain of circumstances leading to the conclusion that the appellant is guilty
of the offence of murder of the victim children, his sons, as also the offence
of causing disappearance of evidence. There appears no infirmity in the
findings so recorded.
Plea of mental incapacity of the appellant
19. The chain of circumstances against the appellant being complete
and strong, learned counsel for the appellant has endeavoured to make out
a case of alleged unsoundness of mind of the accused-appellant and has
developed a few contentions in that regard that the intent of committing
crime cannot be imputed on the appellant looking to his mental instability;
and that the entire trial stood vitiated for want of compliance of Section 329
CrPC.
19.1. Sections 84 IPC, 86 IPC, 329 CrPC and 105 Evidence Act with its
illustration (a), carrying relevance in relation to the submissions so made,
could be usefully reproduced as under: -
Sections 84 and 86 IPC
| “ | 84. Act of a person of unsound mind.—Nothing is an offence | |
|---|
| which is done by a person who, at the time of doing it, by reason of | | |
| unsoundness of mind, is incapable of knowing the nature of the act, | | |
| or that he is doing what is either wrong or contrary to law.” | | |
“86. Offence requiring a particular intent or knowledge
committed by one who is intoxicated . —In cases where an act
done is not an offence unless done with a particular knowledge or
intent, a person who does the act in a state of intoxication shall be
liable to be dealt with as if he had the same knowledge as he would
have had if he had not been intoxicated, unless the thing which
52
| intoxicated him was administered to him without his knowledge or | |
|---|
| against his will.” | |
Section 329 CrPC
“329. Procedure in case of person of unsound mind tried
before Court .—(1) If at the trial of any person before a Magistrate
or Court of Session, it appears to the Magistrate or Court that such
person is of unsound mind and consequently incapable of making
his defence, the Magistrate or Court shall, in the first instance, try
the fact of such unsoundness and incapacity, and if the Magistrate
or Court, after considering such medical and other evidence as may
be produced before him or it, is satisfied of the fact, he or it shall
record a finding to that effect and shall postpone further
proceedings in the case.
| 14(1-A) If during trial, the Magistrate or Court of Sessions finds |
|---|
| the accused to be of unsound mind, he or it shall refer such person | |
| to a psychiatrist or clinical psychologist for care and treatment, and | |
| the psychiatrist or clinical psychologist, as the case may be shall | |
| report to the Magistrate or Court whether the accused is suffering | |
| from unsoundness of mind: | |
| Provided that if the accused is aggrieved by the information |
|---|
| given by the psychiatric or clinical psychologist, as the case may | |
| be, to the Magistrate, he may prefer an appeal before the Medical | |
| Board which shall consist of— | |
| (a) head of psychiatry unit in the nearest government hospital; |
|---|
| and | |
| (b) a faculty member in psychiatry in the nearest medical |
|---|
| college. | |
| 15(2) If such Magistrate or Court is informed that the person |
|---|
| referred to in sub-section (1-A) is a person of unsound mind, the | |
| Magistrate or Court shall further determine whether unsoundness | |
| of mind renders the accused incapable of entering defence and if | |
| the accused is found so incapable, the Magistrate or Court shall | |
| record a finding to that effect and shall examine the record of | |
| evidence produced by the prosecution and after hearing the | |
| advocate of the accused but without questioning the accused, if the | |
| Magistrate or Court finds that no prima facie case is made out | |
| against the accused, he or it shall, instead of postponing the trial, | |
14
Inserted by the Code of Criminal Procedure (Amendment) Act, 2008, Act No. 5 of 2009 (w.e.f.
31.12.2009).
15
Substituted by the Code of Criminal Procedure (Amendment) Act, 2008, Act No. 5 of 2009
(w.e.f. 31.12.2009).
53
discharge the accused and deal with him in the manner provided
under Section 330:
| Provided that if the Magistrate or Court finds that a prima facie |
|---|
| case is made out against the accused in respect of whom a finding | |
| of unsoundness of mind is arrived at, he shall postpone the trial for | |
| such period, as in the opinion of the psychiatrist or clinical | |
| psychologist, is required for the treatment of the accused. | |
| (3) If the Magistrate or Court finds that a prima facie case is | |
|---|
| made out against the accused and he is incapable of entering | | |
| defence by reason of mental retardation, he or it shall not hold the | | |
| trial and order the accused to be dealt with in accordance with | | |
| Section 330.” | | |
Section 105 Evidence Act
“105. Burden of proving that case of accused comes within
exceptions .— When a person is accused of any offence, the
burden of proving the existence of circumstances bringing the case
within any of the General Exceptions in the Indian Penal Code, (45
of 1860), or within any special exception or proviso contained in any
other part of the same Code, or in any law defining the offence, is
upon him, and the Court shall presume the absence of such
circumstances.
Illustrations
| (a) A, accused of murder, alleges that, by reason of unsoundness | |
| of mind, he did not know the nature of the act. | |
The burden of proof is on A.
”
20. As noticed, in regard to the mental status of the appellant, two-fold
submissions have been made in the present appeal. One concerning his
mental incapacity at the time of commission of crime and second, as
regards the legality and validity of trial where the investigating agency and
the prosecution did not project the factors relating to mental incapacity of
the appellant and the Trial Court did not adopt the procedure envisaged by
Section 329 CrPC. These submissions are founded on the facts that the
appellant was addicted to alcohol and was admitted to the rehabilitation
centre for de-addiction. It has also been underscored that the family
54
members of the appellant got him discharged from the rehabilitation centre
against advice and without letting him complete the course for rehabilitation
to its expected duration. The submissions carry several shortcomings and
could only be rejected in the facts of the present case.
21. It remains trite that the burden of proving the existence of
circumstances so as to bring the case within the purview of Section 84 IPC
lies on the accused in terms of Section 105 of the Evidence Act; and where
the accused is charged of murder, the burden to prove that as a result of
unsoundness of mind, the accused was incapable of knowing the
consequences of his acts is on the defence, as duly exemplified by
illustration (a) to the said Section 105 of the Evidence Act. As noticed, the
mandate of law is that the Court shall presume absence of the
circumstances so as to take the case within any of the General Exceptions
in the Indian Penal Code, 1860. The principles of burden of proof in the
context of plea of unsoundness of mind had been stated by this Court in
the case of Dahyabhai Chhaganbhai Thakkar (supra) in the following
terms: -
“ 7. The doctrine of burden of proof in the context of the plea of
insanity may be stated in the following propositions: ( 1 ) The
prosecution must prove beyond reasonable doubt that the accused
had committed the offence with the requisite mens rea, and the
burden of proving that always rests on the prosecution from the
beginning to the end of the trial. ( 2 ) There is a rebuttable
presumption that the accused was not insane, when he committed
the crime, in the sense laid down by Section 84 of the Indian Penal
Code: the accused may rebut it by placing before the court all the
relevant evidence oral, documentary or circumstantial, but the
burden of proof upon him is no higher than that rests upon a party
to civil proceedings. ( 3 ) Even if the accused was not able to
establish conclusively that he was insane at the time he committed
55
the offence, the evidence placed before the court by the accused or
by the prosecution may raise a reasonable doubt in the mind of the
court as regards one or more of the ingredients of the offence,
including mens rea of the accused and in that case the court would
be entitled to acquit the accused on the ground that the general
burden of proof resting on the prosecution was not discharged.”
22. As noticed, the prosecution has proved beyond reasonable doubt
that the accused has committed the offences of murdering the children and
causing disappearance of evidence. The other surrounding factors also
show that prosecution has proved the requisite mens rea with reference to
the manner of commission of crimes and projecting false narratives by the
appellant. In the given set of facts and circumstances, on the submission
as made as regards unsoundness of mind, the question in the present case
is as to whether the accused-appellant has been able to establish that he
was insane at the time of committing the offence or anything has been
projected on record for which even a reasonable doubt could be
entertained as regards mens rea ? The answer to this question, in our view,
could only be in the negative.
23. The evidence on record, taken as a whole, at the most shows that
the appellant was addicted to alcohol and was admitted to the rehabilitation
centre for de-addiction. However, there is absolutely nothing on record to
show that the appellant was medically treated as a person of unsound mind
or was legally required to be taken as a person of unsound mind. Contrary
to the suggestions made on behalf of the appellant, the testimony of PW-3
Jagbir, manager of rehabilitation centre, had been clear and specific that
during his stay in the centre, no mental illness was observed in the
56
appellant nor was he treated for any mental illness. PW-3 stated in
categorical terms that the behaviour of the appellant ‘ was normal during his
said stay and he was never given any medicine for mental illness because
neither any mental illness was observed in him nor his family members
gave us any previous history of his suffering from any mental illness .’ In his
cross-examination, this witness further removed any doubt in regard to the
mental status of the appellant while maintaining that the appellant ‘ was
mentally fit and sound during his stay at our centre and he was admitted
only for de-addiction of his habit of consuming liquor. ’ Hence, the appellant’s
had only been a case of addiction to alcohol. The manager, PW-3, of
course, suggested the opinion that the appellant ought to have undergone
the course for a period of 7-9 months and that the family members got him
discharged against advice but, this statement cannot be read to mean that
the appellant was to be treated as a person of unsound mind. In fact, the
appellant remained admitted to the rehabilitation centre from 20.11.2008 to
29.04.2009, i.e., for a period of over 5 months and, as noticed above, he
was never found suffering from any mental illness so as to be regarded as
a person of unsound mind.
24. It is also noticed that the plea of unsoundness of mind and,
therefore, the benefit of Section 84 IPC, was never taken in the trial nor any
evidence was led in this regard. Significantly, not even a remote suggestion
was made to any witness examined for the prosecution about the alleged
mental incapacity of the appellant. In his examination under Section 313
57
CrPC, the response of the appellant to the questions relating to his
admission to the rehabilitation centre and the related facts had been that
those aspects were ‘ a matter of record’ . In the given set of facts and
circumstances, we are unable to find anything on record for which the
benefit of Section 84 IPC could even be remotely extended to the appellant.
25. Similarly, the submissions that when the state of mind/mental
condition of appellant was brought on record, the Trial Court ought to have
ordered an evaluation to rule out any doubt, remain rather bereft of logic.
25.1. In the relied upon passage in the decision of Gujarat High Court
cited on behalf of the appellant in case of Manjuben (supra), the Court had
explained the basics relating to the operation of Section 329 CrPC and its
distinction from Section 84 IPC in following terms: -
“43. *
23. Section 329 of the Cr.P.C. on the other hand, provides for
a procedure in case of a person of unsound mind tried before
the Court. Section makes it clear that in a trial before the
Magistrate or Court of Sessions, if the accused appears to be
of unsound mind and consequently incapable of making his
defence, then the Court shall, in the first instance, try the fact
of such unsoundness of mind and incapacity and if satisfied in
this regard, shall record a finding to that effect and shall
postpone the further proceedings. This Section is similar to
Section 328 of the Cr.P.C. with this-difference that the latter
relates to an enquiry before a Magistrate, while this Section
relates to the trial before the Magistrate or Court of Sessions.
However, both the Sections relate to unsoundness of mind at
the time of inquiry or trial that the accused is of unsound mind.
A Magistrate cannot act on his own opinion. He must have
before him a statement of medical officer, who must be
examined. Where the Court decides that the accused is of
unsound mind and consequently incapable of making his
defence, the trial is to be postponed. As provided in Section
330 of the Cr.P.C. such a person may be released on sufficient
security being given that he shall be properly taken care of and
shall be prevented from doing injury to himself or to any other
person or for his appearance when required before the
58
Magistrate or the Court. The Court or the Magistrate is also
entitled to direct the accused to be detained in safe custody in
such a place and manner as it may think fit if it is of the view
that the bail should not be taken or sufficient security is not
given. Section 331 of the Cr.P.C. thereafter talks of resumption
of enquiry or trial, when the concerned persons ceases to be
of unsound mind. Section 332 of the Cr.P.C. prescribes a
procedure to proceed with the trial or enquiry as the case may
be.
*”
25.1.1. The aforesaid expositions on the scope of the provisions relating to
accused person of unsound mind are not of much debate. However,
nothing of the aforesaid principles could apply to the present case, for there
had been no material on record and no other reason appeared during trial
for which, the Trial Court would have been obliged to take recourse of the
procedure contemplated by Section 329 CrPC.
25.2. Similarly, the suggestions about defect in trial or failure on the part
of the investigating agency to get the appellant examined through
psychiatrist with reference to the decision of the Bombay HC in case of
Ajay Ram Pandit (supra) remain too far-stretched. In the said case, it was
noticed that the investigating officer became aware of the fact after
apprehending the accused that he was mentally unstable and in fact, the
people in his locality used to consider him as a mad man. The fact situation
of the present case is entirely different.
25.3. In the given set of facts and circumstances, we are not dilating on
the other decisions cited by the learned counsel for the appellant for being
not relevant for the present purpose. Fact of the matter in the present case
remains that there is nothing on record to show that the appellant was a
59
person of unsound mind, whether at the time of commission of crimes or
during the course of trial.
26. Apart that there was no fault on the part of the Trial Court or the
investigating agency, it is also noteworthy that contrary to even a trace of
want of mental capacity of the appellant at the time of commission of the
crimes in question, the manner of commission, with strangulation of the
children one by one; throwing of their dead bodies into the canal; appellant
himself swimming in the canal and coming out; and immediately thereafter,
stating before several persons that the children had accidentally slipped
into the canal so as to project it as a case of accidental drowning, if at all,
show an alert and calculative mind, which had worked with specific intent
to cause the death of the children and to cause disappearance of evidence
by throwing dead bodies into the canal and thereafter, to mislead by giving
a false narrative. By no logic and by no measure of assessment, the
appellant, who is found to have carried all the aforesaid misdeeds, could
be said to be a person of unsound mind.
27. Thus, we are clearly of the view that the appellant was neither
suffering from any medically determined mental illness nor could be said to
be a person under a legal disability of unsound mind. Hence, neither
Section 84 IPC applies to the present case nor Section 329 CrPC would
come to the rescue of the appellant.
28. The suggestions about treatment of the appellant for his abnormal
behaviour in jail also does not take his case any further. As noticed, there
60
is nothing on record to find that the appellant was a person of unsound
mind at the time of commission of crime or was a person of unsound mind
when tried in this case. Post-conviction behaviour is hardly of any
relevance so far as present appeal is concerned. In fact, his post-conviction
abnormalities, as dealt with in year 2013 i.e., nearly two years after the
impugned judgment of the Trial Court, cannot even remotely be correlated
with the relevant questions arising for the purpose of present appeal. Even
in that regard, the report of the Medical Officer (I/C) Central Jail No. 5, Tihar
New Delhi dated 22.07.2013 states that the appellant was admitted to
psychiatry ward from 07.01.2013 to 04.03.2013 for complaints of abnormal
behaviour but, he improved following treatment and at time of issuance of
certificate, his general condition was satisfactory; and his mental status
examination did not reveal any gross psychopathology.
29. Hence, viewed from any angle, the contention urged on behalf of
appellant, as to be given the benefit of the provisions meant for a person
of unsound mind, cannot be accepted. The said provisions do not enure to
the benefit of the appellant from any standpoint.
30. We may in the passing also observe that in the given set of facts
and circumstances, even when the appellant was shown to be a person
taken to excessive consumption of alcohol, there is nothing on record to
show if he did the offending acts in a state of intoxication so as to give rise
to a doubt about intention with reference to the principles underlying
Section 86 IPC. We need not elaborate on this aspect for the same having
61
not been projected in evidence at all. In other words, the present one is not
a case where intent could be ruled out so as to reduce the offence of
murder to that of culpable homicide not amounting to murder. The
suggestions about altering the conviction to Section 304 IPC are also
required to be rejected.
Conclusion
31. For what has been discussed hereinabove, we are satisfied that
there is no infirmity in the findings concurrently recorded by the Trial Court
and the High Court that the prosecution case is amply established by
cogent and convincing chain of circumstances, pointing only to the guilt of
the appellant, who caused the death of victim children, his sons, by
strangulation and also caused the evidence of offence to disappear by
throwing the dead bodies into the canal. The submissions evolved for the
purpose of the present appeal that the appellant be extended the benefit of
alleged want of mental capacity also remain baseless and could only be
rejected. Therefore, no case for interference is made out.
32. Consequently, this appeal fails and is, therefore, dismissed.
……....……………………. J.
(DINESH MAHESHWARI)
……....……………………. J.
(SUDHANSHU DHULIA)
NEW DELHI;
JANUARY 02, 2023.
62
