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Saturday 10 January 2015

Whether accused can be convicted on the basis of police statement of witness?


Similarly, in B.A. Umesh vs. Registrar General, High Court of Karnataka, (2011) 3 SCC 85 the Court relied on the extra judicial confession of the accused.
No doubt Smt. Dhillo Devi was declared hostile by the prosecution as she resiled from her earlier statement to the police. However, as observed in State vs. Ram Prasad Mishra & Anr. :
"The evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but can be subjected to close scrutiny and the portion of the evidence which is consistent with the case of the prosecution or defence may be accepted."
Similarly in Sheikh Zakir vs. State of Bihar AIR 1983 SC 911 this Court held :
"It is not quite strange that some witnesses do turn hostile but that by itself would not prevent a court from finding an accused guilty if there is otherwise acceptable evidence in support of the conviction."
In Himanshu alias Chintu vs. State (NCT of Delhi), (2011) 2 SCC 36 this Court held that the dependable part of the evidence of a hostile witness can be relied on.
Thus it is the duty of the Court to separate the grain from the chaff, and the maxim "falsus in uno falsus in omnibus" has no application in India vide Nisar Alli vs. The State of Uttar Pradesh AIR 1957 SC 366. In the present case we are of the opinion that Smt. Dhillo Devi denied her earlier statement from the police because she wanted to save her son. Hence we accept her statement to the police and reject her statement in court.
The defence has not shown that the police had any enmity with the accused, or had some other reason to falsely implicate him.
We are of the opinion that this was a clear case of murder and the entire circumstances point to the guilt of the accused.
        

                                                              REPORTABLE


              IN THE SUPREME COURT OF INDIA


            CRIMINAL APPELLATE JURISDICTION


             CRIMINAL APPEAL NO. 1117  OF 2011

      @ SPECIAL LEAVE PETITION (CRL.) NO.1208 OF 2011





Bhagwan Dass              ..                   Appellant


            -versus-


State (NCT) of Delhi   ..                    Respondent(s)




Markandey Katju, J.

Citation;AIR 2011 SC 1863




          "Hai maujazan ek kulzum-e-khoon kaash yahi ho

               Aataa hai abhi dekhiye kya kya mere aage"


       

    --  Mirza Ghalib


                                                                                2





1. This is yet another case of gruesome honour killing, this time 


by the accused-appellant of his own daughter.


2.    Leave granted.




3.    Heard   learned   counsels   for   the   parties   and   perused   the 


record.




4.    The prosecution case is that the appellant was very annoyed 


with his daughter, who had left her husband Raju and was living 


in   an   incestuous   relationship   with   her   uncle,   Sriniwas.     This 


infuriated   the   appellant   as   he   thought   this   conduct   of   his 


daughter   Seema   had   dishonoured   his   family,   and   hence   he 


strangulated her with an electric wire.   The trial court convicted 


the   appellant   and   this   judgment   was   upheld   by   the   High   Court. 


Hence this appeal.




5.    This is a case of circumstantial evidence, but it is settled law 


that   a   person   can   be   convicted   on   circumstantial   evidence 


                                                                                   3


provided   the   links   in   the   chain   of   circumstances   connects   the 


accused   with   the   crime   beyond   reasonable   doubt   vide  Vijay 


Kumar   Arora    vs.    State   (NCT   of   Delhi),   (2010)   2   SCC   353 


(para 16.5),  Aftab Ahmad Ansari   vs.   State of Uttaranchal, 


(2010) 2 SCC 583 (vide paragraphs 13 and 14), etc.  In this case, 


we are satisfied that  the prosecution has been able to prove its 


case beyond reasonable doubt by establishing all the links in the 


chain of circumstances.




6.    In cases of circumstantial evidence motive is very important, 


unlike cases of direct evidence where it is not so important vide 


Wakkar and Anr.   vs.   State of Uttar Pradesh  (2011) 3 SCC 


306   (para   14).     In   the   present   case,   the   prosecution   case   was 


that   the   motive   of  the   appellant   in   murdering   his   daughter   was 


that   she   was   living   in   adultery   with   one   Sriniwas,   who   was   the 


son   of   the   maternal   aunt   of   the   appellant.     The   appellant   felt 


humiliated by this, and to avenge the family honour he murdered 


his own daughter.


                                                                                 4


7.      We   have   carefully   gone   through   the   judgment   of   the   trial 


court as well as the High Court and we are of the opinion that the 


said judgments are correct.




8.      The  circumstances   which   connect   the  accused   to  the   crime 


are:


i)      The motive of the crime which has already been mentioned 


above.   In our country unfortunately `honour killing' has become 


common   place,   as   has   been   referred   to   in   our   judgment   in 


Arumugam Servai   vs.   State of Tamil Nadu  Criminal Appeal 


No.958   of   2011   (@SLP(Crl)   No.8084   of   2009)   pronounced   on 


19.4.2011.


        Many people feel that they are dishonoured by the behaviour 


of the young man/woman, who is related to them or belonging to 


their   caste   because   he/she   is   marrying   against   their   wish   or 


having an affair with someone, and hence they take the law into 


their   own   hands   and   kill   or   physically   assault   such   person   or 


commit   some   other   atrocities   on   them.     We   have   held   in  Lata 


                                                                                    5


Singh   vs.   State of U.P. & Anr. (2006) 5 SCC 475, that this is 


wholly illegal.  If someone is not happy with the behaviour of his 


daughter or other person, who is his relation or of his caste, the 


maximum he can do is to cut off social relations with her/him, but 


he cannot take the law into his own hands by committing violence 


or giving threats of violence.  




ii)    As   per   the   post   mortem   report   which   was   conducted   at 


11.45 am on 16.5.2006 the likely time of death of Seema was 32 


hours prior  to the post mortem.   Giving a margin of two hours, 


plus   or   minus,   it   would   be   safe   to   conclude   that   Seema   died 


sometime between 2.00 am to 6.00 am on 15.5.2006.  However, 


the appellant, in whose house Seema was staying, did not inform 


the   police   or   anybody   else   for   a   long   time.     It   was   only   some 


unknown   person   who   telephonically   informed   the   police   at   2.00 


pm   on   15.5.2006   that   the   appellant   had   murdered   his   own 


daughter.     This   omission   by   the   appellant   in   not   informing   the 


police about the death of his daughter for about 10 hours was a 


                                                                                    6


totally unnatural conduct on his part.           




iii)    The   appellant   had   admitted   that   the   deceased   Seema   had 


stayed   in   his   house   on   the   night   of   14.5.2006/15.5.2006.     The 


appellant's mother was too old to commit the crime, and there is 


not even a suggestion by the defence that his brother may have 


committed   it.     Hence   we   can   safely   rule   out   the   possibility   that 


someone else, other than the appellant, committed the crime.


        Seema had left her husband sometime back and was said to 


be   living   in   an   adulterous   and   incestuous   relationship   with   her 


uncle (her father's cousin), and this obviously made the appellant 


very hostile to her.




        On   receiving   the   telephonic   information   at   about   2.00   pm 


from some unknown person, the police reached the house of the 


accused   and   found   the   dead  body   of  Seema  on  the   floor  in   the 


back   side   room   of   the   house.     The   accused   and   his   family 


members   and   some   neighbours   were   there   at   that   time.     The 


accused  admitted  that  although  Seema had  been  married  about 


                                                                                    7


three years ago, she had left her husband and was living in her 


father's house for about one month.  Thus there was both motive 


and opportunity for the appellant to commit the murder.


iv)     It has come in evidence that the accused appellant with his 


family members were making preparation for her last rites when 


the   police   arrived.     Had   the   police   not   arrived   they   would 


probably have gone ahead and cremated Seema even without a 


post mortem so as to destroy the evidence of strangulation.  




v)     The   mother   of   the   accused,   Smt.   Dhillo   Devi   stated   before 


the   police   that   her   son   (the   accused)   had   told   her   that   he   had 


killed Seema.  No doubt a statement to the police is ordinarily not 


admissible   in   evidence   in   view   of   Section   162(1)   Cr.PC,   but   as 


mentioned in the proviso to Section 162(1) Cr.PC it can be used 


to   contradict   the   testimony   of  a  witness.     Smt.   Dhillo   Devi   also 


appeared   as   a   witness   before   the   trial   court,   and   in   her   cross 


examination, she was confronted with her statement to the police 


to whom she had stated that her son (the accused) had told her 


                                                                                    8


that   he   had   killed   Seema.     On   being   so   confronted   with   her 


statement   to   the   police   she   denied   that   she   had   made   such 


statement.




      We are of the opinion that the statement of Smt. Dhillo Devi 


to   the   police   can   be   taken   into   consideration   in   view   of   the 


proviso   to   Section   162(1)   Cr.PC,   and   her   subsequent   denial   in 


court   is   not   believable   because   she   obviously   had   afterthoughts 


and wanted to save her son (the accused) from punishment.   In 


fact in her statement to the police she had stated that the dead 


body   of   Seema   was   removed   from   the   bed   and   placed   on   the 


floor.   When she was confronted with this statement in the court 


she denied that she had made such statement before the police. 


We   are   of   the   opinion   that   her   statement   to   the   police   can   be 


taken into consideration in view of the proviso of Section 162(1) 


Cr.PC.


      In   our   opinion   the   statement   of  the   accused   to   his   mother 


Smt. Dhillo Devi is an extra judicial confession.  In a very recent 


                                                                                     9


case   this   Court   in  Kulvinder   Singh   &   Anr.    vs.  State   of 


Haryana  Criminal Appeal No.916 of 2005 decided on 11.4.2011 


referred   to   the   earlier   decision   of   this   Court   in  State   of 


Rajasthan  vs.  Raja Ram (2003) 8 SCC 180, where it was held 


(vide para 10) :


     "An extra-judicial confession, if voluntary and true and 

     made in a fit state of mind, can be relied upon by the 

     court.   The   confession   will   have   to   be   proved   like   any 

     other fact. The value of the evidence as to confession, 

     like any other  evidence,  depends  upon  the veracity  of 

     the   witness   to   whom   it   has   been   made.   The   value   of 

     the evidence as to the confession depends on the relia-

     bility   of   the   witness   who   gives   the   evidence.   It   is   not 

     open to any court to start with a presumption that ex-

     tra-judicial   confession   is   a   weak   type   of   evidence.   It 

     would depend on the nature of the circumstances, the 

     time when the confession was made and the credibility 

     of the witnesses who speak to such a confession. Such 

     a confession can be relied upon and conviction can be 

     founded   thereon   if   the   evidence   about   the   confession 

     comes from the mouth of witnesses who appear to be 

     unbiased,   not   even   remotely   inimical   to   the   accused, 

     and   in   respect   of   whom   nothing   is   brought   out   which 

     may tend to indicate that he may have a motive of at-

     tributing   an   untruthful   statement   to   the   accused,   the 

     words spoken to by the witness are clear, unambiguous 

     and unmistakably convey that the accused is the perpe-

     trator  of the crime  and  nothing  is omitted  by the wit-

     ness which may militate against it. After subjecting the 

     evidence of the witness to a rigorous test on the touch-

     stone of credibility, the extra-judicial confession can be 


                                                                                 10


       accepted and can be the basis of a conviction if it pass-

       es the test of credibility."


                             

       In the above decision it was also held that a conviction can 


be based on circumstantial evidence.





       Similarly,   in  B.A.   Umesh    vs.    Registrar   General,   High 

Court   of   Karnataka,   (2011)   3   SCC   85   the  Court   relied   on   the 

extra judicial confession of the accused.

   

       No   doubt   Smt.   Dhillo   Devi   was   declared   hostile   by   the 

prosecution   as   she   resiled   from   her   earlier   statement   to   the 

police.  However, as observed in State  vs.  Ram Prasad Mishra 

& Anr. :

            "The   evidence   of   a   hostile   witness   would   not   be 

       totally rejected if spoken in favour of the prosecution or 

       the accused, but can be subjected to close scrutiny and 

       the portion of the evidence which is consistent with the 

       case of the prosecution or defence may be accepted."

         



       Similarly in Sheikh Zakir  vs.  State of Bihar AIR 1983 SC 

911 this Court held :

             "It   is   not   quite   strange   that   some   witnesses   do 

       turn hostile but that by itself would not prevent a court 

       from   finding   an   accused   guilty   if   there   is   otherwise 

       acceptable evidence in support of the conviction." 


                                                                                11





       In  Himanshu   alias   Chintu    vs.    State   (NCT   of   Delhi), 


(2011) 2 SCC 36 this Court held that the dependable part of the 


evidence of a hostile witness can be relied on.




       Thus it is the duty of the Court to separate the grain from 


the chaff, and the maxim "falsus in uno falsus in omnibus" has no 


application   in   India   vide  Nisar   Alli    vs.    The   State   of   Uttar 


Pradesh  AIR  1957  SC  366.     In  the  present case  we  are  of the 


opinion   that   Smt.   Dhillo   Devi   denied   her   earlier   statement   from 


the police because she wanted to save her son.  Hence we accept 


her   statement   to   the   police   and   reject   her   statement   in   court. 


The defence has not shown that the police had any enmity with 


the accused, or had some other reason to falsely implicate him.




       We are of the opinion that this was a clear case of murder 


and the entire circumstances point to the guilt of the accused. 





vi)    The cause of death was opined by Dr. Pravindra Singh-PW1 


                                                                               12


in his post mortem report as death "due to asphyxia as a result of 


ante-mortem strangulation by ligature."   It is evident that this is 


a   case   of   murder,   and   not   suicide.     The   body   was   not   found 


hanging but lying on the ground. 




vii)    The   accused   made   a   statement   to   the   SDM,   Shri   S.S. 


Parihar-PW8,   immediately   after   the   incident   and   has   signed   the 


same.   No doubt he claimed in his statement under Section 313 


Cr.PC that nothing was asked by the SDM but he did not clarify 


how his signature appeared on the statement, nor did he say that 


he   was   forced   to   sign   his   statement   nor   was   the   statement 


challenged   in   the   cross   examination   of   the   SDM.     The   SDM 


appeared   as  a  witness   before   the   trial   court  and   he   has   proved 


the statement in his evidence.   There was no cross examination 


by the accused although opportunity was given.


        In his statement under Section  313 Cr.PC the accused was 

asked :

        "Q.8 It   is   in   evidence   against   you   that   you   were 

        interrogated   and   arrested   vide   memo   Ex   PW11/C   and 

        your   personal   search   was   conducted   vide   memo   Ex 


                                                                                  13


      PW11/D and  you  made disclosure  statement EXPW7/A 

      and in pursuance thereto you pointed out the site plan 

      of   incident   and   got   recovered   an   electric   wire   Ex   P1 

      which   was   seized   by   IO   after   sealing   the   same   vide 

      memo ExPW7/B.  What do you have to say? 


      The reply he gave was as follows :


      "Ans.   I was wrongly arrested and falsely implicated in 

      this   case.    I   never   made   any   disclosure   statement.     I 

      did   not   get   any   wire   recovered   nor   I   was   ever   taken 

      again to my house."




      We see no reason to disbelieve the SDM as there is nothing 


to show that he had any enmity against the accused or had any 


other reason for making a false statement in Court.  


viii) The accused had given a statement (Ex. PW7/A) to the SDM 


in   the   presence   of   PW11   Inspector   Nand   Kumar   which   led   to 


discovery of the electric wire by which the crime was committed. 


We   are   of   the   opinion   that   this   disclosure   was   admissible   as 


evidence under Section 27 of the Evidence Act vide Aftab Ahmad 


Ansari  vs.  State, (2010) 2 SCC 583 (para 40), Manu Sharma 


vs.    State,   (2010)   6   SCC   1   (paragraphs   234   to   238).     In   his 


evidence   the   police   Inspector   Nand   Kumar   stated   that   at   the 


                                                                                   14


pointing   out   of   the   accused   the   electric   wire   with   which   the 


accused   is   alleged   to   have   strangulated   his   daughter   ws 


recovered from under a bed in a room.


      It   has   been   contended   by   the   learned   counsel   for   the 


appellant   that   there   was   no   independent   witness   in   the   case. 


However, as held by this Court in State of Rajasthan  vs.  Teja 


Ram and Ors. AIR 1999 SC 1776 :


      "The   over-insistence   on   witnesses   having   no   relation 

      with   the   victims   often   results   in   criminal   justice   going 

      awry. When any incident happens in a dwelling house, 

      the   most   natural   witnesses   would   be   the   inmates   of 

      that   house.   It   is   unpragmatic   to   ignore   such   natural 

      witnesses  and   insist  on   outsiders   who   would   not   have 

      even seen anything. If the court has discerned from the 

      evidence   or   even   from   the   investigation   records   that 

      some   other   independent   person   has   witnessed   any 

      event connecting the incident in question, then there is 

      a   justification   for   making   adverse   comments   against 

      non-examination of such a person as a prosecution wit-

      ness.   Otherwise,   merely   on   surmises   the  court   should 

      not   castigate   the   prosecution   for   not   examining   other 

      persons   of   the   locality   as   prosecution   witnesses.   The 

      prosecution can be expected to examine only those who 

      have witnessed the events and not those who have not 

      seen it though the neighbourhood may be replete with 

      other residents also."


      Similarly,   in  Trimukh   Maroti   Kirkan    vs.    State   of 


                                                                                15


Maharashtra (2006)1 SCC 681 this Court observed:


      "These crimes are generally committed in complete se-

      crecy inside the house and it becomes very difficult for 

      the   prosecution   to   lead   evidence.  No   member   of   the 

      family, even if he is a witness of the crime, would come 

      forward to depose against another family member. The 

      neighbours,   whose   evidence   may   be   of   some   assis-

      tance,   are   generally   reluctant   to   depose   in   court   as 

      they want to keep aloof and do not want to antagonize 

      a   neighbourhood   family.   The   parents   or   other   family 

      members   of   the   bride   being   away   from   the   scene   of 

      commission of crime are not in a position to give direct 

      evidence  which may inculpate the  real accused  except 

      regarding the demand of money or dowry and harass-

      ment caused to the bride. But, it does not mean that a 

      crime committed in secrecy or inside the house should 

      go unpunished."
                                                  (emphasis supplied)




      In our opinion both the trial court and High Court have given 


very cogent reasons for convicting the appellant, and we see no 


reason   to   disagree   with   their   verdicts.     There   is   overwhelming 


circumstantial evidence to show that the accused committed the 


crime as he felt that he was dishonoured by his daughter.


      For  the reason given above we find  no force in this  appeal 

and it is dismissed.




      Before   parting   with   this   case   we   would   like   to   state   that 


                                                                             16


`honour' killings have become commonplace in many parts of the 


country,   particularly   in   Haryana,   western   U.P.,   and   Rajasthan. 


Often young couples who fall in love have to seek shelter in the 


police lines or protection homes, to avoid the wrath of kangaroo 


courts.  We have held in Lata Singh's case (supra) that there is 


nothing `honourable' in `honour' killings, and they are nothing but 


barbaric   and   brutal   murders   by   bigoted,   persons   with   feudal 


minds.


      In   our   opinion   honour   killings,   for   whatever   reason,   come 


within   the   category   of   rarest   of   rare   cases   deserving   death 


punishment.     It   is   time   to   stamp   out   these   barbaric,   feudal 


practices which are a slur on our nation.    This is necessary as a 


deterrent for such outrageous, uncivilized behaviour.  All persons 


who are planning to perpetrate `honour' killings should know that 


the gallows await them. 


      Let   a   copy   of   this   judgment   be   sent   to   the   Registrar 


Generals/Registrars of all the High Courts who shall circulate the 


same   to   all   Judges   of   the   Courts.               The   Registrar 


                                                                                 17


General/Registrars of the High Courts will also circulate copies of 


the same to all the Sessions Judges/Additional Sessions Judges in 


the State/Union Territories.  Copies of the judgment shall also be 


sent   to   all   the   Chief   Secretaries/Home   Secretaries/Director 


Generals   of   Police   of   all   States/Union   Territories   in   the   country. 


The   Home   Secretaries   and   Director   Generals   of   Police   will 


circulate   the   same   to   all   S.S.Ps/S.Ps   in   the   States/Union 


Territories for information.


                                                  ...................................J.

                                                  (Markandey Katju)`


                                                  ..................................J.

                                                  (Gyan Sudha Misra)

New Delhi;

May  09 , 2011


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