Judgment:
Aruna Suresh, J.
1. Vide this judgment we shall dispose of two Criminal Appeals being Criminal Appeal No. 949/2004 titled Mahesh v. State and Criminal Appeal No. 511/2004 titled as Mamta v. State both arising out of judgment dated 13th April, 2004 and order on sentence dated 22nd April, 2004.
2. Both the Appellants have been held guilty of murder of Anand and were sentenced to imprisonment for life and a fine of Rs. 500/- each, in default rigorous imprisonment for six months under Section 302/34 of Indian Penal Code (IPC).
3. Co-accused Rajesh was given benefit of reasonable doubt and was accordingly acquitted.
4. On 3rd May, 1999 around 5.40 P.M. information was received from Lachari that his son Anand had been murdered in Jhuggi C-406, Dr. Ambedkar Nagar Camp. This information was recorded as DD No.18 (Exhibit PW8/A). Police reached the spot and found deceased Anand lying dead in his jhuggi in a pool of blood on a wooden bed. Complainant along with number of other persons was present there and on his complaint Exhibit PW2/A, First Information Report (FIR) Exhibit PW16/A was registered at about 8.15 P.M. Necessary investigation was undertaken.
5. The case of the prosecution is that Appellant Mamta, wife of the deceased Anand, had illicit relations with Appellant Mahesh and they Along with Rajesh (since acquitted) killed Anand at around 11.00 P.M. on 2nd May, 1999 pursuant to a quarrel between Mamta and the deceased at around 5.00 P.M. on that very day. After murder both the Appellants absconded and were apprehended from Village Siawari and were brought to Delhi. After interrogation they were arrested and recoveries of exhibits were effected at their behest and on completion of the investigation, the charge sheet was filed.
6. On the basis of prima facie evidence available on the record, the learned Trial Court framed charge under Section 302/34 IPC against both the Appellants and their co-accused Rajesh vide his order dated 14th March, 2000. All the three accused persons pleaded not guilty and claimed trial.
7. There is no eye witness to the unfortunate incident and the prosecution has based its entire case on circumstantial evidence. To prove its case, the prosecution has examined as many as 19 witnesses. Out of them Rajesh (PW3) is the most important witness as he had last seen both the Appellant and the deceased together in the evening at about 5.00 P.M. on 2nd May, 1999 and at night at about 11.30 P.M. he had seen both the Appellants outside the jhuggi. The circumstances relied upon by the prosecution are as follows:
(a) Occurrence took place in the jhuggi of deceased Anand. He was living with his wife Appellant Mamta in one of the two rooms.
(b) Appellant Mahesh was residing in the other room of the same jhuggi, which was allegedly sold to the Appellant by the deceased. He was staying there alone most of the time and his wife and children were staying at his native Village Pithanpur in U.P.
(c) There was a quarrel between Appellant Mahesh and Rajesh on one side and deceased on the other side, while they were consuming liquor on the roof of jhuggi of one Dalbir at about 5.00 or 6.00 P.M. on 2nd May, 1999.
(d) Mamta and Anand had a quarrel immediately thereafter in their jhuggi.
(e) The two appellants were last seen together by Rajesh (PW3) near the place of occurrence.
(f) Motive was to get rid of the deceased as the two Appellants had illicit relationship.
(g) Recovery of blood stained banyan and maxi belonging to the Appellants.
8. Learned amices Curiae for the Appellants have submitted that only testimony of last seen on 2nd May, 1999 is that of Rajesh (PW3). The incident took place in the night of 2nd May, 1999; and the dead body was recovered on 3rd May, 1999; whereas Appellant Mahesh was in his native village attending the marriage of his relation and was not in Delhi on the fateful night. It is further submitted that there is no evidence to indicate that both the Appellants have illicit relationship. Admittedly, none of the witnesses had seen Mamta and Mahesh together thereforee, the sole testimony of Rajesh (PW3) cannot be relied upon as his having last seen the Appellants together. In the absence of any motive to kill deceased Anand, he cannot be considered to be the author of the crime. It is further submitted on behalf of Appellant Mamta that no maxi was recovered at the instance of Mamta and Mamta in her statement recorded under Section 313 Cr.P.C. was not put any question regarding maxi belonging to her. thereforee, when she has not been given sufficient opportunity to reply to the prosecution evidence regarding the recovery of maxi at the instance of Mahesh, the factum of recovery of maxi cannot be considered adversely against Mamta.
9. It is urged by the Learned Counsels for the Appellants that the nature of circumstantial evidence produced on the record by the prosecution is weak and there is no evidence to establish the motive, thereforee, both the Appellant are entitled to acquittal.
10. Satya Wati (PW1) and Lachari (PW2) are the parents of deceased Anand. They went to the house of Anand on 3rd May, 1999 at about 5.00 P.M. to meet Anand. They found the deceased lying in a pool of blood on the wooden bed (takhat) in his jhuggi. Appellant Mamta was no where seen. Even Appellant Mahesh, who had purchased two rooms in the same jhuggi from them about 2/4 years prior to the incident, was also found missing from the jhuggi. It was on the complaint of Lachari (PW2), the FIR was registered.
11. The only material witness examined by the prosecution is Rajesh (PW3) who happens to be a neighbour of the Appellants. He, in categorical terms, has proved that deceased Anand suspected his wife Mamta having illicit relationship with Appellant Mahesh. On 2nd May, 1999 Appellant Mahesh, co-accused Rajesh (since acquitted) Along with deceased Anand were sitting on the roof of jhuggi of Dalbir at about 5.00 or 6.00 P.M. and were consuming liquor. After sometime they started quarreling. Mamta brought the deceased downstairs to his jhuggi and Mamta and Anand had a quarrel inside their jhuggi. Appellant Mahesh and Rajesh also went inside the jhuggi of Anand. They all started grappling with Anand. On the intervention of the neighbours, the Appellant Mahesh and co-accused Rajesh were pacified.
12. Rajesh (PW3) has further proved in evidence that at about 11.30 P.M. on the same night he went out to collect water from water supply tank. He heard someone crying and went towards the jhuggi of Anand. He noticed that Appellant Mahesh was fumbling with the lock of his jhuggi and on asking, Mahesh informed him (PW3) that Mamta and Anand were quarreling thereforee he went to the jhuggi of Anand and saw Mamta standing at the door. When he (PW3) asked Mamta about the quarrel, she remained silent and he came back to his jhuggi.
13. In his testimony it has also come that on the next day he (Rajesh PW3) did not see Anand and presumed that he must have gone to his work. At about 5.30 P.M. to 6.00 P.M. on 3rd May, 1999, parents of the deceased came and when they entered the jhuggi, they came out crying stating that Anand had been killed. Rajesh also rushed inside the jhuggi and saw the dead body of Anand lying in a pool of blood.
14. The testimony of Rajesh (PW3) could not be shattered during his cross examination by any of the Appellants. Admittedly, there is no other corroborative piece of evidence available on the record to support the statement of Rajesh (PW3).
15. Undoubtedly, he is a neighbour of the Appellants as well as the deceased. It is a well settled principle of law that it is quality of the evidence which is material for deciding the criminal trial. Emphasis has always been put on the quality of evidence under Section 134 of the Evidence Act, which makes it clear that no particular number of witnesses shall in any case be required for the proof of any fact.
16. As far back as in 1957 in Vadivelu Thevar v. State of Madras : 1957CriLJ1000 , it was observed by the Hon'ble Supreme Court as follows:
On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, the following propositions may be safely stated as firmly established:
(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.
Quoting Section 134 of the Evidence Act, their Lordships stated that 'we have no hesitation in holding that the contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated.
17. In Namdeo v. State of Maharashtra : 2007CriLJ1819 , the Hon'ble Supreme Court while discussing the relevance and admissibility of the testimony of a sole witness as the basis for conviction of accused has analyzed the legal proposition in the light of various judgments and observed:
Recently, in Bhimappa Chandappa v. State of Karnataka : (2006)11SCC323 , this Court held that testimony of a solitary witness can be made the basis of conviction. The credibility of the witness requires to be tested with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the Court as natural, wholly truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony. From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the Legislature (Section 134, Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, thereforee, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eye witness, thereforee, has no force and must be negatived.
18. Rajesh (PW3) is not an eye witness to the incident but he is a witness to having last seen both the Appellants together in the company of the deceased as well as of Appellant Mamta in the company of her deceased husband. The murder in this case took place inside the house of Mamta. Apart from her there could not have been any eye witness to the incident and thereforee the prosecution had to necessarily rely upon the circumstantial evidence only. In cases where only circumstantial evidence is available, court normally looks for the motive and the opportunity to commit the crime.
19. The prosecution is attacked by the Learned Counsels for the Appellants on the ground that the motive has not been proved and it is only interested witnesses who have talked about the illicit relationship between the Appellants and there is nothing on the record to show such illicit relationship between the Appellants and that no independent witness has been examined by the prosecution to support its case.
20. Proving the motive is not a sine qua non of success of the prosecution. Failure on the part of the prosecution to prove motive does not give any escape route to the Appellant, if otherwise the circumstances are such, which raise an incriminating finger towards the Appellants. In Udaipal Singh v. Sate of UP : 1972CriLJ7 the Court observed that:
In cases where only circumstantial evidence is available at the outset one normally starts looking for the motive and the opportunity to commit the crime. If the evidence shows that the accused having a strong enough motive had the opportunity of committing the crime and the established circumstances on the record considered along with the Explanationn if any of the accused, exclude the reasonable possibility of anyone also being the real culprit then the chain of evidence can be considered to be complete as to show that within all human probability the crime must have been committed by the accused. He may, in that event, safely be held guilty on such circumstantial evidence.
21. In Bhimappa Chandappa Hosamani and Ors. v. State of Karnataka reported as 2006 SCALE 406 it has been laid down:
It is well settled that in order to bring home the guilt of an accused, it is not necessary for the prosecution to prove the motive. The existence of motive is only one of the circumstances to be kept in mind while appreciating the evidence adduced by the prosecution. If the evidence of the witnesses appears to be truthful and convincing, failure to prove the motive is not fatal to the case of the prosecution. The law on this aspect is well settled.
22. In the present case the Appellant Mahesh was residing in a room in the jhuggi of deceased and Appellant Mamta. Appellant Mamta did not like the drinking habit of the deceased and they used to quarrel and fight whenever deceased used to drink. Appellants developed illicit relationship. Appellant Mahesh was last seen with the deceased and Mamta on the date of occurrence and again with Mamta at the door of the Jhuggi near about the time of occurrence. After the occurrence all the accused persons were found absconding and were apprehended from Village Siawari in U.P. on 4th May, 1999.
23. It is well settled law that normally a witness is to be considered 'independent' unless he has a cause, such as enmity against the accused, to wish to implicate him falsely. It is a fallacy of many criminal cases that corroboration is required if the witness happens to be a relation of the victim/deceased.
24. In the case in hand, no such cause has been shown on the part of PW Rajesh to falsely implicate the Appellants. The mere allegation that the Appellant had managed to take half jhuggi of the deceased and for that reason the family members are falsely implicating him is of no consequence in the absence of any proof.
25. Coming to the submissions that the prosecution failed to prove the recoveries in the absence of any independent witness, we find it devoid of merit. Rajesh (PW3) having proved the recoveries, absence of other independent witnesses to the recovery of vest of Mahesh and maxi of Mamta does not adversely affect the prosecution case. The recoveries were effected from the room of the Appellant Mahesh pursuant to his arrest by the police. Recoveries have not been made from a place which was in open and easily accessible to all. thereforee the recoveries of exhibits cannot be doubted.
26. Dr. Tabin Millo (PW4) conducted the postmortem on the dead body of deceased Anand on 4th May, 1999. As per his report Ex.PW4/A he found that face was suffused congested and bluefish colour with protruding eye bolls. Tongue was protruding. He could see blood clots in the mouth and right ear cavity. There was marbling (sign of putrefaction) seen in upper chest and back. The abdomen was distended and scrotum was swollen. The skin in the body, legs and hands was in the process of peeling. On external examination, he found following ante-mortem injuries:
1. Four crescentic shaped nail marks around the nose.
2. Fracture of the margin of the nasal bone.
3. One contused abrasion in the right cheek 2 x 1 cm in size.
4. Subconjunctival hemorrhage was seen in left eye.
5. Multiple small abrasion around the neck on the anteric lateral aspect of the size 0.2-0.4 cms x 0.3x1 cms. underneath the structure there was extra vasation of blood. Major neck vessel and thyrohyroid complex was intact.
6. Partially healed wound in left anteriorly 2x3 cms.
7. Partially healed wound in right mallar region 2 x 2 cms. and
8. Partially healed would in right leg 20 cms below right knee on the sheen 4x5 cms in size.
He was of the opinion that cause of death was asphyxia on account of smothering, which was antemortem in nature.
27. Both the Appellants were arrested from village Siawari in U.P. on 4th May, 1999. Appellant Mahesh has taken the plea of alibi, whereas Appellant Mamta has taken the plea of her being present in her house in the morning and then going to work. Both the pleas are found to be untrue.
28. The defense witnesses examined by Appellant Mahesh have spoken about the visit of the police in village Mariha on 4th May, 1999. They have not supported the plea of alibi taken by the Appellant Mahesh as they had seen Appellant Mahesh only on 3rd May, 1999 and not before that in the village. Murder had taken place on 2nd May, 1999. Jagdish (DW2) did affirm that Appellant Mahesh had come to the village about 2/3 days prior to the marriage scheduled for 4th May, 1999 but had gone back to Delhi after leaving his family. In the cross-examination he has admitted that he had not seen Appellant Mahesh in the village on 2nd and 3rd May, 1999.
29. Raj Kumar Singh (DW3) also belies the plea of alibi of Appellant Mahesh. As per his testimony Appellant Mahesh had arrived in the village on 3rd May, 1999. He had seen Appellant Mahesh on that day at about 8.00 P.M. Even the defense evidence has not come to the rescue of the appellants. Appellant Mamta has not examined any witness. She has stated in her statement under Section 313 Cr.P.C. that on 3rd May, 1999 in the morning she was in the home and thereafter she had gone to attend her work and had come back in the evening and that she never left her house. She has also not been able to substantiate her alternative defense that on 2nd May, 1999 her deceased husband had called some unsocial elements at home and was taking liquor with them and some quarrel took place between her and the deceased and she went off to sleep on the roof thereafter and next morning on seeing the body of deceased was crying and howling. If that was so, why she did not inform the police about the murder of her husband. It was only in the evening of 3rd May, 1999 when parents of deceased Anand visited him, they found his dead body lying inside the house. In her statement under Section 313 Cr.P.C. she says that she went for work in Bhogal leaving the deceased alone in the house after the quarrel and she came to know about the incident only by the police. Under these circumstances, it is difficult to believe her defense taken during the cross examination of the prosecution witnesses. Even the medical report does not support her version as Dr. Tabin Millo (PW4) did not find anything in the stomach of the deceased.
30. In Swapan Patra and Ors. v. State of West Bengal reported as : (1999)9SCC242 , it was observed:
It is well settled that in a case of circumstantial evidence when the accused offers an Explanationn and that Explanationn is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain.
31. In Trimukh Maroti Kirkan v. State of Maharashtra decided on 11.10.2006 reported as : 2007CriLJ20 , it was observed:
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. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with 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. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him.
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 Explanationn as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no Explanationn 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 Explanationn.
It was further observed that:
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 Explanationn or offers an Explanationn which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.
32. In Kuldeep Singh and Ors. v. State of Rajasthan reported as : 2001CriLJ479 the Court referred to Swapan Patra v. State of West Bengal : (1999)9SCC242 and State of Maharashtra v. Suresh : (2000)1SCC471 and held that:
In cases of circumstantial evidence when the accused offers an Explanationn, which is found to be untrue, then the same becomes an additional link in the chain of circumstances to complete the chain.
33. Thus the prosecution has succeeded in proving the chain of circumstances as follows:
1. Appellant Mamta was suspected of having illicit relationship with Appellant Mahesh.
2. On the fateful night of 2nd May, 1999 in the evening, Appellant Mamta and deceased Anand had a quarrel.
3. Appellant Mamta and Mahesh were seen together at about 11.00 P.M. by Rajesh (PW3) outside their houses. Mamta was seen standing outside the door and Appellant was seen fumbling with the lock.
4. None of the two persons were seen thereafter till their arrest.
5. The dead body of the deceased was recovered by PW1 Satya Wati and PW2 Lachari mother and father of deceased Anand in the evening of 3rd May, 1999.
6. Both the Appellants were arrested from Village Siawari in the evening of 4th May, 1999 and at the instance of Appellant Mahesh exhibits i.e. his banyan and maxi of Appellant Mamta were recovered from inside his jhuggi.
7. The postmortem reflected the cause of death as asphyxia by strangulation.
8. Contradictory defense taken by Mamta and plea of alibi taken by Appellant Mahesh failed as defense witnesses did not support him.
9. Appellant Mamta failed to produce any evidence that she was not present in her house and had left her house after a quarrel and had gone to Bhogal to attend her work on 3rd May, 1999 or that she had seen the dead body of the deceased in the morning and cried loudly and chose to go to her work at Bhogal.
34. The statement of PW3 Rajesh is reliable and convincing as no contradictions have come in his testimony and it also finds support from the medical evidence.
35. thereforee, the prosecution successfully completed the chain of circumstances, which strongly indicate that the Appellants are the culprits. The learned Judge has appreciated the evidence properly in right perspective of the legal proposition applicable to the facts and circumstances of this case. Hence, we find no merit in the Appeals. Consequently, the Appeals are hereby dismissed.
36. In view of the efforts put in by learned amices Curiae, we direct the Delhi Legal Services Authority to pay them a fee of Rs. 3500/- each within six weeks from today.