Failure to explain the circumstances of a crime and extra judicial confession can be used as evidence to affirm a conviction.

PRADEEP NANDRAJOG, J.

1. Noting that the appeal came up for hearing and none appeared for the appellant, who was admitted to bail on September 29, 2005, the Bench concern had passed an order on January 16, 2015 issuing bailable warrants to secure the presence of the appellant. The warrants could not be executed because the appellant absconded. On July 16, 2015 it was noted by the Bench that the appellant was a resident of Assam and his father named Mohin Dass was contacted by the local police, who disclosed that the appellant was not in touch with him or any other family member for the last six years. Proceedings under Section 82 and 83 were directed to be conducted against the appellant.

2. The appeal continued to be shown as per its priority position in the list of ‘Regular Matters’. It has reached for hearing today. Mr.M.Shamikh, advocate who is present in Court has been appointed as the amicus to represent the appellant and with his assistance as also that of the learned assistant Public Prosecutor Sh.Varun Goswami, we have gone through the impugned judgment and the evidence considered by the learned Additional Sessions Judge. Fee of learned amicus shall be paid by the Delhi High Court Legal Services Committee as per its schedule.

3. At Session Trial No.100/98, Milan Dass has been convicted for having murdered his wife named Tara during early hours of the morning on March 29, 1998. That Tara became a star i.e. died in the morning of March 29, 1998, emerges not only from the testimony of Dr.K.Goyal, PW-1, who conducted Tara’s post-mortem on March 30, 1998, recording therein that the cause of death was asphyxia with apoplexy consequent upon ligature strangulation caused by soft ligature material which could possibly be a purple pink chunni found in-situ around the neck of the deceased as per the post-mortem report Ex.PW-1/A, as also from the testimony of Randhir Kumar PW-3, Smt.Urmila PW-5, Tinku PW-9, Ram Phal PW-14 and Kapil Dev Sharma PW-15, all of whom have deposed that in the early house of the morning of the fateful day, Tara was seen by them strangulated to death in the room at House No.A-159, Arvind Enclave, Amar Colony, Nangloi, Delhi in which Tara resided with the appellant.

4. This takes us straight to the testimony of the five witnesses abovereferred to in paragraph 3 followed by the testimony of Inspector Prem Chand, PW-17.

5. We began by noting the testimony of Tinku PW-9, for the reason he was the one who first saw Tara and the appellant in their room. Tinku is Tara’s brother. As per him, at 7.00 A.M. on the day of the incident his mother requested to him to call his sister and the appellant to take tea. On reaching the room where his sister resided he found the door closed and called out to his sister to come for tea and the response came from the appellant that his sister had slept forever and he should tell his mother to call the police for only in the presence of the police would he open the room. Subjected to cross-examination, Tinku aged 11 years, on March 18, 1999 when he deposed has withstood the test of cross-examination.

6. The next witness to be discussed needs to be Urmila PW-5, the mother of Tinku and Tara and the mother-in-law of the appellant. She has deposed that she and Tinku were residing at House No.A-171, Arvind Enclave, Amar Colony, Nangloi, Delhi. The appellant was married to her daughter Tara and initially resided with her at House No.A-171, Arvind Enclave, Amar Colony, Nangloi, Delhi. After some time the accused and his daughter took on rent a room in the house nearby i.e. No.A-159 Arvind Enclave, Amar Colony, Nangloi, Delhi but they used to take their food with them at her house. Appellant used to suspect the character of Tara and used to quarrel with her. He used to beat Tara. On the day of the incident she sent Tinku to call Tara and the appellant to take tea and Tinku on return told her of what appellant said to him (as deposed to by Tinku). She went to the room where appel