NON­REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL    NO.884 OF 2013  

NAWAB                     ....APPELLANT(S)

VERSUS

STATE OF UTTARAKHAND                ...RESPONDENT(S)

J U D G M E N T

NAVIN SINHA, J.

The appellant is aggrieved by his conviction under

Section 302 IPC sentencing him to life imprisonment, and

under Section 25 of the Arms Act for one year.

2. The appellant  submitted a  written report to the  police

that in the night intervening between 24/25.03.2002,   at

about 01:30 AM, three hooligans entered his house to abduct

him.  His wife was shot dead by the miscreants after a scuffle

when she tried to prevent them from doing so. One firearm

injury was found on the person of the deceased, with an entry

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and exit wound.   On consideration of the evidence, the

appellant was convicted by the trial court and which has been

upheld by the High Court.

3. Dr. Surender Singh Hooda, learned counsel for the

appellant, submitted that the present is a case of

circumstantial evidence.  Relying on  Sharad Birdhichand

Sarda vs. State of Maharashtra, 1984 (4) SCC 116, it was

submitted that the links in the chain of circumstances had not

been established pointing conclusively towards the guilt of the

appellant alone.   Mere suspicion, no matter how strong,

cannot be the basis of conviction. No incriminating

circumstances were put to the appellant under Section 313

Cr.P.C.  The  High Court  has  disbelieved  the recovery  of the

country made pistol on the alleged confession of the appellant

under Section 27 of the Evidence Act, 1872. The conviction of

the appellant is unsustainable and he is entitled to acquittal.

4. Mr.  Jatinder Kumar Bhatia, learned counsel  appearing

for the State and Mr. Sanjay Kumar Dubey, learned counsel

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appearing on behalf of the relative of the deceased, whom we

permitted to address us allowing his application for

impleadment, submitted that the motive of the appellant

stands clearly established to obtain the benefit of the  Life

Insurance Policy ( LIC) taken few days earlier in the name of

the deceased.   The plea of entry by outsiders has been

completely disbelieved in absence of any evidence. The

occurrence having taken place at past midnight when the

appellant  was alone at home  with the deceased, the onus

shifts on him under Section 106 of the Evidence Act to explain

the circumstances under which his wife met a homicidal

death. The appellant failed to furnish any plausible defence.

5. We  have considered the submissions  on  behalf of the

parties and also perused the evidence on record.   The

appellant had taken an LIC policy in the name of his deceased

wife  on 23.03.2002,  barely few days  before the  occurrence.

PW­4, brother of the deceased, deposed that they reached at

six  in the morning after  being  informed of the death of  his

sister  by others and  not the  appellant. The  mother of the

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deceased PW­6 deposed that the appellant was greedy for

money and prior to the occurrence he had demanded

Rs.10,000 from the witness.   

6. The appellant initially stated in the FIR that three

persons entered his house at midnight to abduct him. In his

evidence as DW­1 he stated that there were five persons. If the

intruders had come to abduct the appellant and his wife had

been shot  dead  after she tried to  prevent  his  abduction, it

would have been all the more convenient for the intruders to

take the appellant away with them. No explanation has been

furnished by the appellant in this regard. The appellant has

not mentioned any reason or named any on suspicion of

enmity or otherwise why the intruders wished to abduct him.

No details of the physical features and approximate age,

height, built of the intruders has been mentioned even if they

had their faces  covered  despite the fact that the  spot  map

proved by PW­9 and PW­13 establishes the light of an electric

bulb. The appellant initially took the defence that he

suspected his wife of having an illicit relationship. The defence

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of unknown intruders having entered by scaling the northern

side wall built of mud and cement is belied by the spot map

and evidence that no damage or marks were found on the wall.

Not a single brick was found disturbed and neither were there

any foot marks in the muddy courtyard of the house.  We see

no reason to differ with the conclusion of the Trial Judge that

there ought to have been some marks or signs of scaling the

wall, if not shifting of bricks especially  when three to five

persons are said to have done so.   

7.  In his defence under Section 313 Cr.P.C., the appellant

stated that he had made a complaint against the police to the

superintendent of police and that is why he had been falsely

implicated.   But no evidence was laid much less copy

furnished of any such complaint.  A bald statement was made

that he has been falsely implicated at the behest of his

mother­in­law and father­in­law in collusion with department

officials.

8. The appellant as DW­1 stated that villagers came to his

house when he raised hue and cry after the occurrence. He

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has further deposed that eight to ten persons had gone with

him to the police station. But the appellant apart from himself

did not lead any independent defence evidence.  The mere fact

of broken bangles or a thumb injury on the deceased is not

sufficient to absolve the appellant in view of the nature of the

other evidence against him. We find it very difficult to accept

the explanation of the appellant that despite the presence of

five persons, when one of them could have easily over powered

the lady, there  was  any need for them  to  shoot  her  as  an

obstruction in the abduction of the appellant.   We have gone

through the statement of the appellant under  Section  313

Cr.P.C. and find that all relevant questions were put to him

including from the spot map.  

9. The wife of the appellant met a homicidal death in her

own house past mid night when the appellant was alone with

her.  His defence has completely been disbelieved with regard

to the intruders  and  we find  no reason  not to  uphold the

same. The prosecution had therefore established a prima facie

case and the onus shifted to the appellant under Section 106

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of the Evidence Act,1872 to explain the circumstances how his

wife met a homicidal death. The appellant failed to furnish any

plausible defence and on the contrary tried to lead false

evidence which is an additional aggravating factor against

him.

10.  In Trimukh Maroti Kirkan vs. State of Maharashtra,  

(2006) 10 SCC 681, it was observed as follows :

“14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult  for  the prosecution to  lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial  merely to  see  that  no  innocent man is punished. A judge also presides to see that  a guilty man does not  escape.  Both are public duties. The law does not enjoin a duty on the  prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to  the  facts and circumstances of the case. Here it is necessary to keep in mind Section  106  of the  Evidence  Act  which says that when any fact is especially within the

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knowledge of any person, the burden of proving that fact is upon him….

15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent  explanation  as to  how  the  crime  was committed.  The  inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the  burden to  establish its case lies  entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."

11. The deceased had only one entry and exit wound. The

bullet apparently exited her body and thus the likelihood of its

recovery from the place of occurrence  with the round end

damaged after  it was fired. The pistol was recovered on the

confession of the appellant from under the earth in the

courtyard, the earth was freshly dug. The High Court

disbelieved the recovery because the independent witness PW­

2 went hostile.   But the High Court missed the reasoning by

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the trial court that PW­2 did not deny his signature on the

recovery memo nor did he state that his signature was

obtained by  threat,  duress or  coercion.  The absence of  any

FSL report may at best be defective investigation.

12.  We find no reason to interfere with the conviction of the

appellant. All the links in the chain of circumstances point to

the guilt of the appellant alone. The appeal is dismissed.

…………...................J. [ASHOK BHUSHAN]

…………...................J. [NAVIN SINHA]

NEW DELHI;  JANUARY 22, 2020

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