Delhi District Court
This Is The Prosecution Of Accused Sadab ... vs Sadab on 19 August, 2023
IN THE COURT OF ASJ (FTC)-02, SOUTH DISTRICT,
SAKET COURTS
PRESIDED OVER BY : SH. VISHAL PAHUJA
CNR No. DLST01-000485-2018
SC NO. 57/18
STATE V. SADAB
FIR NO. 524/17
PS: NEB SARAI
U/S: 302 IPC
State
Versus
Sadab,
s/o Sh. Salaudin,
r/o Eidgahwala Mohalla,
Muradnagar, Dist. Ghaziabad,
Uttar Pradesh. .... Accused
DATE OF INSTITUTION : 23.12.2017
DATE OF RESERVING JUDGMENT : 18.08.2023
DATE OF JUDGMENT/ ORDER : 19.08.2023
FINAL ORDER : Convicted
JUDGMENT
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. This is the prosecution of accused Sadab pursuant to charge sheet filed by PS Neb Sarai U/s 302 Indian Penal Code (hereinafter referred to as IPC) subsequent to the investigation carried out by them in FIR No. 524/17.
2. Brief facts of the case are that a call was received vide DD no.
13A by SI Pardeep on 29.09.2017 who thereafter reached at the spot i.e. H.no. 1781, Gali no. 30/6, L-1st Sangam Vihar, New Delhi, alongwith HC Madan Mohan where they found a lady aged about 22 FIR No. 524/17, PS Neb Sarai State v. Sadab Page 1/24 years lying dead on the bed having ligature marks on her neck. On preliminary inquiry, it was found that deceased name was Sana who was married to Sadab four years ago. It also transpired that the deceased took some medicine on the night and did not wake up on the next morning. Considering the suspicious circumstances, the information regarding the same was communicated to SDM. SDM and Crime team inspected the spot. Dead body was taken to AIIMS Hospital where as per MLC no. 8375/17 she was brought dead. SDM recorded the statement of mother, brother and cousin of deceased.
3. As per the statement of Sh. Jahid Saifi, elder brother of deceased on whose statement the FIR was registered, her younger sister Sana (deceased) was married to accused Sadab in the year 2013. It was their love marriage. Deceased started residing with her husband at his relatives place in Meerut. After sometime, the relatives including parents-in-law started harassing her and taunting her that compelled her to leave and she came to Sangam Vihar alongwith her husband. She was residing here for the last 3 years and during this period she did not have any complaint against anyone and everything was going well. As per Jahid Saifi, 2-3 days prior to the death of deceased she informed him about the visit of her brother in law and sister in law who had quarreled with her. On 29.09.2017 at about 06.30 AM one Shamim called Jahid Saifi and told him about the demise of Sana. On the statement of Sh. Jahid Saifi, present FIR was registered u/s 302 IPC.
4. During the investigation, accused was arrested. During the course of investigation various exhibits were seized and sent to FSL FIR No. 524/17, PS Neb Sarai State v. Sadab Page 2/24 for expert opinion and statement of witnesses were recorded. After the conclusion of the investigation carried out in the FIR no. 524/17, police filed the charge sheet against the accused Sadab for commission of offence U/s 302 IPC.
5. Vide Order dated 13.10.2014, Ld. Metropolitan Magistrate concerned took cognizance of the offence u/s 302 IPC and accused was called upon to face the trial. Accordingly, he was supplied with the charge sheet and other relevant documents in compliance to section 207/208 Code of Criminal Procedure (hereinafter referred as Cr.P.C.). Thereafter, the present matter was received by way of committal to the Court of Sessions on 16.01.2018. Subsequently, FSL result was obtained and two separate supplementary charge sheets were filed before the Court of Sessions on 27.04.2018 and 20.07.2018. Copies of supplementary charge sheets were supplied to accused.
CHARGE
6. Vide order dated 07.03.2018, charge for the offence punishable u/s 302 IPC was framed by the Ld. Predecessor of this Court against the accused Sadab who pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
7. The prosecution in support of present case has examined 9 (nine) witnesses (PW in short) in total that are discussed as follows:-
FIR No. 524/17, PS Neb Sarai State v. Sadab Page 3/248. PW1 HC Samayveer is the duty officer who proved and exhibited on record DD no. 13A as Ex. PW1/A and DD no. 32A is Ex. PW1/B. PW1 was not cross examined on behalf of accused.
9. PW2 Sh. Zahid Saifi, is the complainant in the present case and is the star witness of the prosecution who deposed in view of his complaint Ex. PW2/A. He further stated that he saw ligature marks over the neck of the deceased and found clothes lying scattered in her room. He further proved and exhibited on record the dead body identification of deceased as Ex. PW2/B, request for the postmortem by the IO is Ex. PW2/C and dead body receiving memo is Ex. PW2/D. As this witness did not support the case of the prosecution, he was cross examined by the Ld. Additional PP for the state with the permission of the Court after declaring him hostile. PW2 was not cross examined on behalf of accused.
10. PW3 Reshma deposed that she was the cousin of deceased Sana and about 8-10 days prior to the death of Sana, she came to know that Sana is residing in Sangam Vihar. She called her on her phone and Sana told her that she was residing with her matrimonial family and everything was ok and she also spoke to her husband i.e. accused Sadab. On 29.09.2017 at about 07.00 - 8.00 AM, PW3 received a call from an unknown number who was the tenant who informed her about the death of Sana. It is further deposed that the landlord told her that on previous day Sana brought some medicine from chemist and after having the same she went to sleep. The same fact was told to PW3 by accused. The statement of PW3 was recorded FIR No. 524/17, PS Neb Sarai State v. Sadab Page 4/24 by tehsildar as Ex. PW3/A. PW3 identified the accused before the court. PW3 was cross examined on behalf of accused.
11. PW4 Sh. Irfan identified the dead body of deceased at Mortuary AIIMS and IO recorded his statement Ex. PW4/A. PW4 was not cross examined on behalf of accused.
12. PW5 Sh. Satyapal was the landlord who deposed that property bearing no. 1781, Gali no. 30, Sangam Vihar belong to his father and there are 3-4 rooms constructed at the ground floor and 2-3 rooms at the first floor. PW5 further deposed that accused Sadab along with his wife, child and his brother resided at the ground floor at a monthly rent of Rs. 1,000/-. It is further deposed that on 29.09.2017 at about 07.00 AM, when he was going for morning walk he saw some persons in the gali. Some kids were also there and he heard from a kid that a lady has been murdered in the room of Sadab. On hearing this, PW5 went towards the room of Sadab along with Sadab who met him in the gali and at that time sadab told PW5 that in the night his wife was ill and she had some medicine due to which she died. On reaching at the room of accused, PW5 observed some daag / mark on the dead body of deceased Sana. Thereafter, PW5 made a call at 100 number through his mobile phone no. 9818801891. PW5 further stated that there is only one entrance in the said property and Daulat Ram used to put lock at the entrance in the night at 10 PM. PW5 correctly identified the accused before the court during trial. PW5 cross examined the accused.
FIR No. 524/17, PS Neb Sarai State v. Sadab Page 5/2413. PW6 Smt. Rehmat Nisha is the mother of deceased who deposed more or less on the same lines as that of PW2 Zahid Saifi. In addition to that, PW6 deposed that her daughter/deceased do not used to come to meet them, however she spoke to her on Baqr-Eid. PW6 deposed that deceased told her that parents-in-law of deceased used to harass her and the accused at the instigation of his parents also harassed her. PW6 further deposed that deceased once told her that her mother-in-law attempted to kill her while pushing her from the roof but she was saved by the tenant. Statement of PW6 was recorded by the SDM as Ex. PW6/A. PW6 identified the accused before the court during trial. PW6 was cross examined on behalf of accused.
14. PW7 Dr. Hemant Kumar Kanwar proved and exhibited on record the post mortem report of deceased Sana as Ex. PW7/A, the subsequent opinion on the said report is Ex. PW7/B. PW7 was not cross examined on behalf of accused.
15. PW8 Sh. Rizwan deposed that he was residing at H.no. 1775, Gali no. 5, Asthal Mandir, Sangam Vihar and H.no. 1781 was under
construction. PW8 further deposed that on 28.09.2017 at about 07.00- 07.30 AM, he came to know that a lady died and was taken to hospital in ambulance. PW7 was not cross examined on behalf of accused.
16. PW8 Sonia deposed that she was residing as tenant at first floor of H.no. 1781 and she knew Sana as she was residing at the ground floor with her husband and two brothers in law. PW8 further deposed that on 28.09.2017, she did not visit the room of Sana. She do not FIR No. 524/17, PS Neb Sarai State v. Sadab Page 6/24 know who had locked the main gate on that day. PW8 further deposed that quarrel used to take place between Sana and her husband Sadab. She do not know any thing about this case. As this witness did not support the case of the prosecution, she was cross examined by the Ld. Additional PP for the state with the permission of the Court after declaring her hostile. This witness was not cross-examined on behalf of accused.
17. PW9 Sh. Arvind Chopra was the Executive Magistrate/Tehsildar, Saket. PW9 proved and exhibited on record statement of Jahid Saifi, Rehmat Nisha and Reshma, brother, mother and cousin of deceased Sana as Ex. PW2/A, PW6/A and PW3/A respectively. PW9 forwarded the said statements to SHO PS Neb Sarai vide letter Ex. PW9/1. PW9 had also sent letter to CMO for postmortem examination of deceased Sana as Ex. PW9/2. PW9 was not cross examined on behalf of accused.
18. PW-10 SI Pradeep Kumar is the Investigating Officer who deposed qua the manner and his involvement in the investigation. PW10 deposed that on receiving of DD no. 13A on 29.09.2017, he along with HC Madan Mohan visited the spot and found Sana lying on the bed in a room in dead condition. PW10 deposed that her death was found to be in suspicious condition, crime team was called for inspection and photography on the spot. PW10 further deposed that SDM was also informed who conducted proceedings under Section 176 Cr. PC and on his direction the postmortem of deceased Sana was conducted vide his request letter Ex. PW2/C. This witness also exhibited the form 25.35B (1B) as Ex. PW10/1. PW-10 further deposed that after conducting of the FIR No. 524/17, PS Neb Sarai State v. Sadab Page 7/24 postmortem, dead body was handed over to the family of the deceased and the exhibits after postmortem examination were taken into possession along with sample seal vide seizure memo Ex. PW10/3. This witness prepared the tehrir Ex. PW10/4 and also attested the statement of the witnesses. PW10 further deposed that further investigation was assigned to Inspector Rajiv Kumar who arrested the accused vide arrest memo Ex. PW10/5, his personal search was conducted vide memo Ex. PW10/6. This witness identified the photographs taken by the crime team in his presence as Ex. PW10/7 (colly). PW10 identified the accused before the court during trial. PW10 was cross examined on behalf of accused.
19. During trial accused admitted the genuineness of the documents u/s 294 Cr.P.C. i.e. FIR No. 524/17 PS Neb Sarai Ex.A1 along with certificate under Section 65B IEA, PCR form along with certificate under Section 65B IEA as Ex.A2 (colly running into 03 pages), scaled site plan as Ex. A3, MLC of Sana bearing no. 8735/2017 as Ex.A5, sample and preservation of blood samples of Sadab and Shahrukh as Ex. A6 (colly 6), acknowledgement of case acceptance bearing ref. Memo no. 2705 and 2706 dated 30.11.2017 and attached road certificate as Ex. A7 (colly running into 05 pages), FSL report bearing no. RFSL 2017/C- 1306 dated 20.02.2018 as Ex. A8 (colly running into 02 pages) and FSL report bearing no. RFSL (CHP) 2017/B-1307/6787 running into 05 pages as Ex. A9.
20. No other PW was left to be examined, hence PE was closed.
FIR No. 524/17, PS Neb Sarai State v. Sadab Page 8/24STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
21. Statement of accused recorded separately U/s 313 Cr.P.C in which all the incriminating circumstances appearing in evidence were put to him. The accused controverted and denied the allegations levelled against him. It is stated by accused that he has been falsely implicated in the present case and no cogent evidence has come on record which could prove him as culprit in the present case . Accused opted not to lead any defence evidence.
ARGUMENTS:
22. Ld. Additional PP for State has argued that prosecution witnesses have supported the case of prosecution and their testimony has remained unrebutted. It is further submitted that the medical evidence also prove the homicidal death of the victim. That on a combined reading of testimony of prosecution witnesses, offence U/s 302 IPC is proved against the accused beyond reasonable doubt.
23. On the other hand, Ld. Counsel for accused have stated that there is no legally sustainable evidence against the accused. It is further argued that the star witnesses have not supported the case of the prosecution. There is no eye witness in this case and there is no circumstantial evidence that proves the guilt of the accused. Thus, on the aforesaid grounds accused deserves to be acquitted.
FIR No. 524/17, PS Neb Sarai State v. Sadab Page 9/24FINDINGS:
24. Arguments adduced by Ld. Additional PP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
25. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused has been indicted for the offence of murder u/s 302 IPC. Section 302 IPC provides punishment for committing the offence of murder with death or imprisonment for life, and shall also be liable to fine.
Section 300 IPC reads as under:
Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-- (Secondly)--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-- (Thirdly)--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be in- flicted is sufficient in the ordinary course of nature to cause death, or--
(Fourthly) --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
26. Since the case of the prosecution is based on the circumstantial evidence, it would be apt to have a look on the law in this regard. Hon'ble Apex Court, in its much-celebrated judgment of Sharad FIR No. 524/17, PS Neb Sarai State v. Sadab Page 10/24 Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, held that while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established.
"153. xxx xxx (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be"
established;
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) The circumstances should be of a conclusive nature and tendency, (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused".
A similar view has been reiterated by the Hon'ble Supreme Court in State of UP v. Satish (2005) 3 SCC 114 and Pawan v. State of Uttranchal (2009) 15 SCC 259.
27. The aforesaid five cardinal principles have been reiterated by the Hon'ble Supreme Court of India in numerous judgments. Therefore, the principle, as laid down in aforesaid judicial dicta, is that FIR No. 524/17, PS Neb Sarai State v. Sadab Page 11/24 in cases based on circumstantial evidence, circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. The various circumstances in the chain of events must be such so as to rule out the reasonable likelihood of innocence of accused. The missing of important link snaps the chain of circumstances and the other circumstances cannot in any manner establish guilt of accused beyond all reasonable doubts.
28. Keeping these conditions in mind and in light of the aforesaid guiding principles of law, this court shall now proceed with the case in hand and shall give findings with respect to each of the circumstance.
SPOT OF INCIDENT BEING IN OCCUPATION OF ACCUSED:
29. PW5 Satyapal being the landlord of the property bearing no. 1781, Gali no. 30, Sangam Vihar deposed before this Court that accused Sadab was given one room at ground floor on monthly rent of Rs. 1,000/-. PW5 visited the room of Sadab on 29.09.2017 where dead body of the wife of accused Sadab was lying. Accused at the time of recording of his statement u/s 313 Cr.P.C. admitted to have been in possession of the aforesaid room taken on rent. It is not disputed by the accused in his statement u/s 313 Cr.P.C. or anywhere while cross examining the prosecution witnesses that the dead body of Sana was found in his rented room where they were residing on the date and time of incident. Hence, the spot of incident being in occupation of the FIR No. 524/17, PS Neb Sarai State v. Sadab Page 12/24 accused at the time of date of happening of the incident being an important circumstance stands duly established.
PRESENCE OF ACCUSED AT THE TIME OF DEATH OF VICTIM
30. Ld. Counsel for the accused raised another contention that the last seen witness of the prosecution PW8 Sonia has not supported the case of the prosecution in any manner nor there is another eye witness to establish the role of the accused in commission of the offence and the other circumstances do not form complete chain. This court agrees to the point of argument put forth by the Ld. Defence counsel to the extent that PW8 has resiled from her previous statement recorded u/s 161 Cr.P.C. whereby she claimed to have visited Sana in her room a night before i.e. on 28.09.2017. Though, PW8 has not supported the case of the prosecution to the effect she has visited the room of deceased but this court beg to differ with the argument of the defence that the other circumstances do not form complete chain. Admittedly, the accused was present in the same room along with the deceased at the time of her death which is not disputed at any place so it was the accused who had to offer an explanation as to if he has not committed the murder then how the death of deceased Sana took place which had been established otherwise by the post mortem report that rule out the possibility of suicide.
31. Ld. Counsel for the accused raised the contention that the police has not recorded the statement of his brother who was also residing with him in the same room and his role has not been investigated. This FIR No. 524/17, PS Neb Sarai State v. Sadab Page 13/24 plea was not taken by the accused anywhere during the trial nor it is stated by the accused that his brother has any involvement in commission of the offence in his statement u/s 313 Cr.P.C. This plea of the accused does not sustain in view of the fact that police has investigated the role of his brother against whom no incriminating evidence was found. Above all, if the accused had any apprehension in respect to the intervention of third person, he could at the very first instance filed the complaint with the police suspecting foul play in the death of his wife but he did not do so. In view of Section 106 of the Indian Evidence Act there will be a corresponding burden on the inmate of the house to give a cogent explanation as to how the crime was committed. The inmate 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. In this case, when the prosecution has succeeded in establishing the aforesaid circumstances, this court has to presume the existence of certain facts and presumption is a course recognized by the law for the Court to rely on in conditions such as this.
32. It was held by the Hon'ble Supreme Court in case titled as Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 where the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the FIR No. 524/17, PS Neb Sarai State v. Sadab Page 14/24 innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife.
33. Some what similar situation was before the Hon'ble Supreme Court of India in case titled as Trimukh Maroti Kirkan v. State of Maharashtra Appeal (crl.) 1341 of 2005 and it was held...
33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
16. In a case based on circumstantial evidence where no eye- witness 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 the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 (para 6); State of U.P. v. Dr. Ravindra Prakash Mittal FIR No. 524/17, PS Neb Sarai State v. Sadab Page 15/24 AIR 1992 SC 2045 (para 40); State of Maharashtra v. Suresh (2000) 1 SCC 471 (para 27); Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 (para 15) and Gulab Chand v. State of M.P. (1995) 3 SCC 574 (para 4)].
17. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.
34. In view of the discussion above and the law settled by the Hon'ble Apex Court, it can safely be concluded that the accused herein also failed to give any plausible explanation for the injuries on the body of deceased and also failed to indicate if there was an intervention by any third person and the admitted presence of accused in the room on the date and time of death of victim Sana enables the court to draw adverse presumption against accused being the perpetrator of crime as an important circumstance that completes the chain of circumstances pointing towards the guilt of the accused.
DEATH OF THE VICTIM WAS HOMICIDAL IN NATURE:
35. Accused has admitted the MLC bearing no. 8735/2017 as Ex. A-5 pertaining to deceased Sana during the trial u/s 294 Cr.P.C. As per FIR No. 524/17, PS Neb Sarai State v. Sadab Page 16/24 the MLC, the external injury was found on the body of the deceased i.e. abrasion of 7x1 cm over left side of the leg. PW7 Dr. Hemant Kumar Kanwar has proved on record the post mortem report of the deceased as Ex. PW7/A. This witness was not cross examined by the accused and the post mortem report therefore stands duly proved. The opinion regarding cause of death has been given as axphyxia as a result of ante mortem compression of neck by strangulation. As per the report, the time of death is given as about 12-18 hours that corresponds with the time when the victim died. Hence, the death of deceased Sana is proved to be a homicidal death.
FALSE PLEA OF ACCUSED THAT THE VICTIM DIED DUE TO REACTION OF MEDICINE TAKEN BY HER:-
36. Ld. Counsel for the accused contended that victim Sana died due to intake of some medicine which reacted adversely and the accused had no involvement in the murder of Sana. It is important to note that the accused has not offered any explanation regarding the death of his wife Sana in his statement u/s 313 Cr.P.C. Plea of defence taken by the accused can be construed from the testimony of PW5 who stated that when he went to the room of Sadab, accused told him that his wife was ill and he gave some medicine to her and she died due to the reaction. No suggestion was put to PW5 by the accused denying the aforesaid fact. In the forensic examination of the viscera no chemical or any such poisonousness substance has been found nor there is any finding given in post mortem report supporting the claim of accused. The RFSL examination report is admitted by the accused as Ex. A-8. Even during the search and inspection of the room of the FIR No. 524/17, PS Neb Sarai State v. Sadab Page 17/24 accused where Sana was found lying dead, no medical prescription or any such medicine was found present. Hence, this plea of accused falls flat and does not get substantiated.
37. As per section 8 of The Indian Evidence Act, the conduct of the accused is relevant as an important circumstance as he tried to create false plea of defence by informing the PWs that victim died due to reaction of some medicine whereas nothing of such sort established on record. Illustration (e) of section 8 is relevant in this context which reads as under:
(e) A is accused of a crime.
The facts that, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.
38. In view of the discussion above, it is clearly established that the accused tried to create a favourable circumstance in his favour by taking a false plea which could not be established. Hence, the conduct of the accused in this respect is an important circumstance that forms the part of chain of circumstances pointing towards the guilt of the accused.
IDENTIFICATION OF ACCUSED:
39. As per the prosecution, PW-2, PW-3, PW-5, PW-10 had FIR No. 524/17, PS Neb Sarai State v. Sadab Page 18/24 correctly identified the accused during their deposition before the court. The accused too, at no point of time disputed his identity. Thus, identity of the accused has been established on record.
MOTIVE
40. Ld. Counsel for the accused has raised contention that the prosecution has failed to establish any motive on the part of the accused to commit murder of his wife Sana. Ld. Counsel pointed out the testimony of PW2 and 3 which says that the relation between accused and the deceased were normal and the same was told by the deceased herself few days prior to her death. Hence, in absence of motive in the present case based upon circumstantial evidence, the doubt weighs in favour of the accused and the complete chain of circumstances does not get established. Per contra, Ld. Additional PP for the state has submitted that in the case of death of a victim at the hands of her husband no motive is required to be established necessarily. Further the testimony of PW6, mother of the deceased, has categorically deposed that deceased was being harassed by the accused during her matrimonial life that shows motive on the part of the accused to get rid of his wife.
41. As far as testimony of PW2 and PW3 is concerned, none of the said witness has supported the case of the prosecution on the aspect of motive of killing as they stated the relations between the deceased and the accused to be normal prior to the death of Sana and she herself FIR No. 524/17, PS Neb Sarai State v. Sadab Page 19/24 told them about the same few days prior to her death. Now coming to the testimony of PW6. PW6 Rehmat Nisha, mother of the deceased is the only witness which has stated that the relation between accused and deceased were not cordial and the accused along with his parents used to harass Sana during her lifetime. However, the testimony of PW6 contains material inconsistencies and discrepancies that renders her testimony unreliable and it does not inspire confidence of the Court. First and foremost, the brother of the deceased PW2 Zahid Saifi has stated contrary to the testimony of PW6. In her examination in chief, PW6 stated that Sana told her on phone that her parents-in- law used to harass her and the accused at the instigation of his parents also harassed her. She further told her that her mother-in-law once attempted to kill her by pushing her from the roof, however, Sana was saved by tenant. No reason or ground has been stated by PW6 for which the deceased Sana used to be harassed by the accused nor the manner of harassment has been stated by PW6 in her testimony. Further, the tenant PW8 Sonia who as per PW6 saved Sana has not corroborated the testimony of PW6 as no such fact has been deposed by her in her deposition before the court.
42. PW6 during her cross examination admitted that she did not make any complaint to the police about the harassment allegedly caused to her daughter Sana by accused and his family. She further admitted that her daughter performed court marriage against her wish and because of this she has made complaint against the accused. This statement of PW6 shows her to be an interested witness. Further, PW6 admitted nobody from her side had attended the court marriage of Sana nor she visited her parental house during her lifetime after her FIR No. 524/17, PS Neb Sarai State v. Sadab Page 20/24 marriage. The aforesaid statements of PW6 and it being contrary to the statements made by other prosecution witnesses including the brother of the deceased PW2 probablizes the fact the deceased Sana did not contact her mother after her marriage with the accused. This is also established as prosecution has failed to prove on record any call detail record to show that deceased Sana contacted her mother through phone as claimed by PW6. Thus, in view of the material contradiction and discrepancies as discussed above, the testimony of PW6 is also of no help to the case of the prosecution for establishing the motive in this case.
43. Be that the case may be, it is to be seen whether motive is necessarily required to be proved by the prosecution in such cases. No doubt in the cases based on circumstantial evidence, existence of motive assumes significance and plays crucial link completing the chain of circumstantial evidence, however, if the evidence is clear and unambiguous and the circumstances proves the guilt of the accused, the same is not weakened even if the motive is not established. In judgment passed by Hon'ble Supreme Court of India in Suresh Chandra Bahari v. State of Bihar, 1995 Supp (1) SCC 80 it was held 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.
44. In the instant case, the murder is not alleged to have been committed by an unknown person rather the allegations are against the husband of the deceased. When an offence like murder is committed FIR No. 524/17, PS Neb Sarai State v. Sadab Page 21/24 in secrecy by the husband in a dwelling house, it will be difficult for the prosecution to establish what actually transpired between the husband and wife and what was the motive that he may have at that point of time to commit such crime. Thus, in view of the settled position of law in Suresh Chandra Bahari v. State of Bihar, the failure to prove the motive is not fatal as a matter of law when other circumstances completes the chain to show that in all human probability the act must have been done by accused. Hence, the case of prosecution cannot be therefore rejected. Thus, the contention of defence do not hold merits in view of the settled position of law.
45. To summarize, prosecution has successfully established the following circumstances beyond any reasonable doubt i.e.
(i) Spot of incident was in the occupation of accused from where body of deceased was recovered;
(ii) Presence of the accused at the place and time of death of his wife Sana.
(iii) Death of victim being homicidal in nature;
(iv) False plea taken by accused that the victim died due to reaction of medicine taken by her to create favourable circumstance in his favour.
(v) The identification of the accused;
46. Further, as mentioned above, the accused offered no explanation to the incriminating evidence/circumstances which were put to him in his statement under section 313 Cr.P.C. It is a settled law that though non explanation of accused to the questions posed by the court u/s 313 Cr.P.C., cannot be considered as a circumstance to complete the chain but it can always be used as an additional link, if the prosecution has FIR No. 524/17, PS Neb Sarai State v. Sadab Page 22/24 established the chain of circumstances which is the case herein. Reliance is placed upon judgment of Supreme Court in Shivaji Chintappa Patil v. State of Maharashtra, Crl. Appeal No. 1348 of 2013, wherein it was observed as under:-
"Another circumstance relied upon by the prosecution is, that the appellant failed to give any explanation in his statement under section 313 Cr.P.C. By now it is well settled principle of law, that false explanation or non explanation can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than the guilt of the accused. However, it cannot be used as a link to complete the chain.
47. To sum up, the circumstances establishing guilt of the accused Sadab have been fully established. The facts established on record are consistent only with the hypothesis of guilt of accused Sadab. The circumstances, as proved by prosecution, are conclusive in nature and there is no scope of probability. The circumstances proved on record exclude every possible hypothesis except the guilt of accused Sadab. The chain of evidence in the present case is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. The circumstances proved on record in this case show that in all human probability it was the accused Sadab who had committed the murder of deceased Sana. In the considered view of this Court, the aforesaid circumstances are sufficient to form a complete chain which unerringly pointed towards the guilt of accused Sadab.
48. Thus, it is hereby concluded that prosecution has successfully established its case against the accused by leading cogent evidence on FIR No. 524/17, PS Neb Sarai State v. Sadab Page 23/24 record. Accordingly, the accused Sadab stands convicted for offence punishable u/s 302 IPC.
Digitally signed by VISHAL VISHAL PAHUJA
Date:
PAHUJA 2023.08.19
15:39:49
+0530
ANNOUNCED IN THE OPEN (VISHAL PAHUJA)
COURT ON 19.08.2023 ASJ (FTC) -02
SOUTH DISTRICT
SAKET COURTS
Containing 24 pages all signed by the presiding officer.
Digitally signedVISHAL by VISHAL PAHUJA PAHUJA Date: 2023.08.19 15:39:54 +0530 (VISHAL PAHUJA) ASJ (FTC) -02 SOUTH DISTRICT SAKET COURTS FIR No. 524/17, PS Neb Sarai State v. Sadab Page 24/24