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Judgment
The appellant stands convicted by the learned Additional Sessions Judge, Sirmaur District at Nahan on 30.6.2016 under Sections 451, 392 and 302 IPC in Sessions Trial No. 41-N/7 of 2014 and has filed the instant appeal.
The case of the prosecution, in brief, is that on 9.6.2014 the appellant in between 11. 45 AM to 1.50 PM trespassed into the house of Firoj Bano and intentionally caused her death by striking her head with the wall and also committed robbery in the house. The information to this effect was given by her daughter Mehaj Bano (for short ''complainant'') on the basis of which FIR came to be registered and the investigation in the case started. It was found during the course of investigation that the trunk in which the deceased had kept her jewellery was found empty and out of that, ear-rings, gold chain, 3 pairs of payals and broad bangles were missing. It was the specific case of the prosecution that the appellant himself confessed his crime before the police on 19.6.2014 and disclosed in custody that after committing murder of Firoj Bano on 9.6.2014, the golden and silver ornaments were kept by him in Jassel Boutique, which was being run by his wife. He further disclosed that he pledged some ornaments with Muthoot Finance Company and receipt to this effect was also in his possession. The disclosure statement of the appellant was reduced into writing vide Ext.PW-4/A and thereafter the appellant led the police party to the shop and got recovered one bag wherein the loan receipt of Muthoot Finance Ext.PW-3/A was found. From the same premises, the appellant got recovered packet of newspaper in which ornaments of gold and silver, one pair Sahara, one golden chain, one pair silver payal, one pair of broad bangles and one single payal silver, were recovered.
It was found that the appellant after committing murder had gone missing and was eventually arrested at Rourkela in Orissa and initially stayed in a Guest House at Yamuna Nagar, the records whereof were collected during the course of investigation. The appellant thereafter was brought to Paonta Sahib after obtaining transit remand. On 20.6.2014 the appellant was taken to the place of occurrence which he identified the place where he had struck the head of deceased Firoj Bano and cleaned the blood with towel. The appellant got recovered a towel Ext. PK-1. Earlier to this, the Investigating Team had already taken into possession the blood stained clothes and had taken the photographs and the entire property as recovered during the course of investigation was then sealed as per procedure and deposited in Malkhana.
It had specifically come in the statement of the complainant recorded under Section 154 Cr.P.C. and had further been corroborated during the course of the evidence that the appellant was in visiting terms to the house of the deceased as he had made the complainant his God Sister. He several times asked about the contents of the truck from the complainant as also deceased Firoj Bano, but was never told the said details. It was then that the appellant taking advantage of the fact that the complainant was not at home and had gone to school to teach, struck the head of Firoj Bano on the wall due to which she died.
After the completion of the investigation, challan was presented in the Court of Additional Sessions Judge and finding sufficient material to prove the charge under Sections 451, 302 and 392 IPC, the appellant was charged for the aforesaid offences to which he pleaded not guilty and claimed trial.
To substantiate the charge, the prosecution examined 20 witnesses. On completion of prosecution evidence, entire incriminating circumstances and evidence was put to the appellant in the shape of his statement under Section 313 Cr.P.C. in which he denied the case of the prosecution and pleaded innocence. No evidence in defence was led by the appellant.
It is vehemently argued by Mr. Rajesh Mandhotra, learned counsel for the appellant that the case of the prosecution is full of contradictions and, therefore, the judgment of conviction as rendered by the learned Court below deserves to be set-aside.
On the other hand, learned Additional Advocate General would claim that the appellant having committed a cold-blood murder of Firoj Bano cannot be shown any leniency, that too, on the so called contradictions in the prosecution evidence. We have heard learned counsel for the parties and have gone through the records of the case.
At the outset, it would be noticed that the case rests entirely upon the circumstantial evidence and it is more than settled that in such like cases the circumstance from which the inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and there has to be a complete chain of evidence consistent only that the hypothesis of guilt of the accused and totally inconsistent with his innocence and in such a case if the evidence relied upon is capable of two inferences then one which is in favour of the accused must be accepted. It is clearly settled that when a case rests on circumstantial evidence such evidence must satisfy three tests: i) The circumstance from which an inference of guilt is sought to be drawn must cogently and firmly established.
ii) Those circumstances should be of a definite tendency un-erringly pointing towards the guilt of the accused.
iii) The circumstances taken cumulatively, should form a complete chain so that to come to the conclusion that the crime was committed by the accused.
Equally well settled is the proposition that where the entire prosecution case hinges on circumstantial evidence the Court should adopt cautious approach for basing the conviction on circumstantial evidence and unless the prosecution evidence point irresistible to the guilt of the accused, it would not be sound and safe to base the conviction of accused person.
In case of circumstantial evidence, each circumstances must be proved beyond reasonable dou bt by independent evidence and the circumstances so proved, must form a complete chain without giving room to any other hypothesis and should be consistent with only the guilt of the accused (See: Lakhbir Singh vs. State of Punjab, 1994 Suppl. (1) SCC 173 ).
Factors to be taken into account in adjudication of cases of circumstantial evidence have been laid down by the Hon''ble Supreme Court as under: (i) The circumstances from which the conclusion of guilt is to be drawn should be fully established;
(ii) The circumstances concerned "must" or "should" and "not" may be established. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, this should not be explainable on any other hypothesis except with the accused guilt;
(iii) The circumstances should be of conclusive nature and tendency;
(iv) They should exclude every possible hypothesis, except they want to be proved;
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the reasons consisting that the innocence of the accused and must so that in all humane probability the act must have been done by the accused. (See: Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, M.G. Agarwal vs. State of Maharashtra (1963) SCC 200).
In Brij Lala Pd. Sinha vs. State of Bihar, 1998 (5) SCC 699, the Hon''ble Supreme Court held as under:- "9. In a case of circumstantial evidence, the prosecution is bound to establish the circumstances from which the conclusion is drawn must be fully proved; the circumstances should be conclusive in nature; all the circumstances so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; and lastly, the circumstances should to a great certainty exclude the possibility of guilt of any person other than the accused. The circumstances proved should lead to no other inference except that of the guilt of the accused, so that the accused can be convicted of the offences charged. Before the court records conviction on the basis of circumstantial evidence, it must satisfy itself that the circumstances from which inference of guilt could be drawn have been established by unimpeachable evidence and the circumstances unerringly point to the guilt of the accused and further, all the circumstances taken together are incapable of any explanation on any reasonable hypothesis save the guilt of the accused."
The legal position on the subject has been elucidated in a recent judgment of the Hon''ble Supreme Court in Pawan Kumar @ Monu Mittal vs. State of Uttar Pradesh and Ant, 2015 (7) SCC 148, wherein it was observed as under:- "36. In case where the direct evidence is scarce, the burden of proving the case of the prosecution is bestowed upon motive and circumstantial evidence. It is the chain of events that acquires prime importance in such cases. Before analyzing the factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consist of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed (see Bodhraj v. State of J&K). In the case on hand, the evidence adduced by the prosecution as discussed above, clearly proves the chain of events connecting the accused to the guilt of the commission of the offence. The entire evidence brought on record by the prosecution, is not only convincing, but is also trustworthy. Even if the confession of Accused 4 and 7 made before PW 1 and PW 2, which is barred by Section 25 of the Evidence Act, is not taken into account, the other evidence on record adduced by the prosecution, is sufficient to hold the accused guilty of the offence.
This court has been consistently taking the view that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. In the present, on scrutiny of evidence on record, we are convinced that the prosecution had established beyond reasonable doubt the complete chain of events which points at the guilt of the accused."
Indubitably, there is no direct evidence to connect the accused with the crime alleged to have been committed. The entire prosecution case rests on circumstantial evidence. It is well settled that when dealing with the question of guilt of person charged with a crime, there must be a clear and unequivocally proof of the "corpus delicti" and the hypothesis of delinquency should be consistent with all the fact proved.
Adverting to the facts, it would be noticed that the learned Court below took note of ten circumstances which according to it were sufficient to convict the appellant and the same are reproduced below: 1) The accused was having motive, occasion and opportunity to commit the offence.
2) Robbery of ornaments in the house of deceased Firoj Bano.
3) Cause of death of deceased was homicidal.
4) Recovery of stolen ornaments at instance of accused from the shop of his wife and their identification by the complainant.
5) Pledging of stolen ear-rings by accused with Muthoot Finance and their recovery at instance of accused and identification by complainant.
6) Ownership of recovered belongings of deceased not disputed by accused and belongings were duly identified by complainant.
7) No explanation given by accused regarding recovery of ornaments of deceased at his instance.
8) Subsequent conduct of the accused after the incident.
9) Recovery of blood stained towel and identification of wall where accused struck the head of deceased and matching of DNA profile obtained from wall and towel with the DNA profile of blood of deceased.
10) Matching of DNA profile obtained from the clothes of accused with the DNA profile of blood of deceased and no explanation on the part of accused.
Adverting to each one of the circumstance, we really do not find any error having been committed by the learned Court below in analyzing each one of the circumstance and thereafter convicting the appellant. However, we would still proceed to analyze each one of the circumstance so as to satisfy our judicial conscious and to do complete justice between the parties. CIRCUMSTANCE-1:
The complainant in her statement under Section 154 Cr.P.C. Ext.PW-1/A had named the appellant as accused on account of his past conduct despite the fact that she happened to be his ''God Sister''. Admittedly, the appellant had free access to the house of the deceased and knew very well the timings when the deceased would be alone in the house. It was the temptation of the closed trunk that drew him to commit the murder of Firoj Bano and this fact has been duly proved on record by Mehaj Bano while appearing in the witness box as PW-1. Moreover, the fact that the appellant had made the complainant as ''God Sister'', is admitted by him in his statement under Section 313 Cr.P.C. wherein he also admitted that he was in visiting terms with the deceased. Moreover, it has specifically come on record that the appellant was always inquisitive to know as to what was contended in the trunk. Therefore, it is proved on record that the appellant was not only having a motive, but had an opportunity to commit the offence. CIRCUMSTANCES No.2,4,5 & 6.
The complainant in her statement under Section 154 Cr.P.C. Ext.PW-1/A had clearly stated about the missing ornaments and the same admittedly were recovered from the shop of the appellant''s wife as is duly proved from the testimony of PW-5 Farman and such statement is duly corroborated by PW-4 HC Kalyan Singh as also by the complainant. It has further come during the course of investigation that the appellant had got recovered one receipt of finance where he had pledged the pair of earrings for `14,000/- with Muthoot Finance and this fact was duly proved by PW-3 Chander Bhushan, Manager of Muthoot Finance. CIRCUMSTANCE No. 3:
The complainant PW-1 has proved on record that her mother was lying dead on the bed when she reached home at 2.25 P.M. and she noticed that blood was oozing out from head and mouth. PW-16 Dr. K.L. Bhagat, conducted the postmortem of the deceased and noticed various injuries as mentioned in the MLC. He further deposed that the deceased died due to head injury that had been sustained by her which clearly proves that the death of the deceased Firoj Bano was homicidal. CIRCUMSTANCE No. 7:
As already discussed above, it was at the instance of the appellant that the stolen articles were recovered and identified by the complainant. Even though, the appellant would deny the recovery so effected, but when the statements of PW-1, PW-2, PW-3, PW-4, PW-5 and PW-17 are perused, then there appears to be no iota of doubt that the recoveries were not so effected. That apart, there is no reason forthcoming as to why the appellant, who is none other than the ''God Brother'' of the complainant would be falsely implicated.
Further the recovery of ear-rings of the deceased from the office of Muthoot Finance is duly supported by pledge form Ext. PW-3/A. Therefore, in such circumstances, it stands proved on record that the ornaments which belonged to the deceased had been recovered at the instance of the appellant. CIRCUMSTANCE No. 8:
It has come on record that Firoj Bano was murdered between 11.45 AM to 1.50 PM on 9.6.2014. It was on 9.6.2014 that the appellant at about 2.00 p.m. took a loan of `14,000/- from Muthoot Finance against the pair of gold earrings at its office at Paonta Sahib where he also submitted his copy of ration card and Adhar card and accordingly pledge form Ext.PW-3/A was prepared. A perusal of the pledge form reveals that it was prepared at 2.05 p.m. on 9.6.2014. As per the prosecution story, the appellant after committing the offence on 9.6.2014 left Paonta Sahib and stayed in Yamuna Nagar at Paras Guest House during night and on next day went to Rourkela from where he was arrested. The stay of the appellant at Paras Guest House, Yamuna Nagar is duly proved by PW-6 Gurpreet Singh by producing the extract of register Ext.PW-6/A.
PW-13 ASI Nok Ram was heading the teams so constituted to arrest the appellant and on 15.6.2014 at about 5.00 p.m. he reached Rourkela and arrested the appellant from the house of his paternal aunt with the help of local police. Such arrest is admitted by the appellant in his statement under Section 313 Cr.P.C. Thus, it stands established on record that the appellant after committing the heinous crime took away ornaments as mentioned above and concealed some of them in the shop of his wife, while one pair of earrings was pledged by him with Muthoot Finance against an amount of `14,000/- and thereafter the appellant fled to Yamuna Nagar where he alongwith his wife and children stayed at Paras Guest House for one night and thereafter left for Rourkela. CIRCUMSTANCE No. 9:
It has come on record that the blood stained clothes of the deceased and towel were got recovered at the instance of the appellant. However, the towel with which the appellant tried to wipe and clean the blood stains from the wall was concealed in such a manner that it could not be recovered at the first instance when the police had earlier visited the spot and such recovery could be effected only after the appellant led the investigating team to the place where it had been concealed. CIRCUMSTANCE No.10:
This is one of the last and most important circumstance in the chain of circumstances that completely nails the appellant. The SFSL, Junga in its report Ext.PX and Ext.PW-17/M has found the human blood in the sample of blood lifted from the wall, blood stained towel and pants of appellant Gurpreet. Vide Ext.PW-17/M, this report further reveals that the DNA profile obtained from the pants of the appellant was matched with the DNA profile obtained from Dupatta, salwar and Kurta of deceased Firoj Bano and with the blood lifted from the wall. At this stage, it would be relevant to mention that even though the appellant tried to destroy the evidence by washing his pants, but to his misfortune, he could not match up with the pace of science and it stood established that the blood stains on the pants of the appellant were those of the deceased Firoj Bano.
However, learned counsel for the appellant would at this stage argue that there are other circumstances available on record which creates a serious doubt about the prosecution story. He would vehemently argue that PW-1 in her cross-examination has denied any relation with PW-2 Javed Akhtar and claimed that he is only a neighbour, whereas PW-2 has categorically stated that he is the son-inlaw of the deceased and there is no reason forthcoming as to why this relation has been concealed which casts a serious doubt in the story of the prosecution. He would further submit that PW-1 has stated that blood was visible on the wall. If that be so, then there was no reason to record disclosure statement and take the accused for identification of the spot and thereafter draw samples for chemical analysis which exercise has been undertaken by the prosecution only to give colour to its story.
We really do not find any merit in this contention because mere fact that PW-1 had not acknowledged the relationship with PW-2 and the other fact that there was blood visible on the spot could be of no avail as it was not incumbent upon PW-1 to prove her relationship with PW-2 and moreover, even if the blood was visible on the wall, how the same appeared on the wall, was required to be duly proved by the prosecution and thus, it essentially had undertaken the exercise of a disclosure statement and identification of the spot by the appellant and thereafter took the blood samples from the wall as per the procedure so as to enable it to prove its case. In case they omitted to do so, obviously there were great chances of failure of the prosecution case.
It is vehemently argued by the appellant that PW-4 had specifically stated that the appellant was interrogated at 9.15 a.m. in the room of SHO. However, the witness of the disclosure statement i.e. PW-5 has stated that he had reached the police station at 11. 00 a.m. and investigation was carried out in the room of Munshi, which casts a serious doubt on the story of the prosecution.
We find no merit in this contention as it is settled position of law that in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and the other witnesses also make material improvements while deposing in the Court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
Exaggerations per se do not render the evidence brittle. But, it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statement of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to the contradictions in material particulars i.e. go to the root of the case, materially affect the trial or core of the prosecution''s case, render the testimony of the witness liable to be discredited. (Refer: State, represented by Inspector of Police vs. Saravanan & another AIR 2009 SC 152; Arumugam vs. State AIR 2009 SC 331; Mahendra Pratap Singh vs. State of Uttar Pradesh (2009) 11 SCC 334 and Dr. Sunil Kumar Sambhudayal Gupta & Ors. vs. State of Maharashtra (2010) 13 SCC 657).
Judged in the light of aforesaid exposition of law, it would be noticed that the contradictions and inconsistencies that are sought to be pointed out, in fact, do not even constitute contradiction, which may create even the remotest doubt, leave alone the serious doubt in the prosecution case. Moreover, the so called contradictions do not even go to the root of the case.
Moreover, a close scrutiny of the statement of the witnesses as have been referred to above, hardly point any inconsistency so as to create even a remotest doubt in the prosecution story.
Learned counsel for the appellant as a last ditch effort, would argue that the pants and shirt that wee taken by the police from the wife of the appellant vide memo Ext.PW-12/B on 22.6.2014 had as per this document been washed and no stains were noticed when the same was taken into possession, then how the blood was found in the pants by SFL is a mystery. That apart, the case property admittedly had been sent to SFL, Junga on 18.7.2014 i.e. after a gap of one month and, therefore, the possibility of tampering with the case property and putting the blood on the pants of the accused cannot be ruled out as the sample seal in the instant case was handed over to PW-12, who is none other than the police official.
We have given thoughtful consideration, but express our inability to agree with the same. The mere fact that the pants had been washed would not in any manner prove that the traces of blood on it would also be permanently removed and mere fact that the seal had been handed over to police official would not by itself be a ground to doubt the prosecution story.
In view of the aforesaid discussion, we find no merit in this appeal and the same is accordingly dismissed.