The principles of the burden of proof under Section 106 of the Indian Evidence Act and the sufficiency of circumstantial evidence in establishing guilt for murder were affirmed.

JUDGMENT

Anish Dayal, J. The appellant has assailed the impugned judgment dated 10th September, 2018 passed by the learned Trial Court convicting the appellant for offence punishable under Section 302 IPC and order on sentence dated 19th September, 2018 sentencing the appellant for life for offence punishable under Section 302 IPC and a fine of Rs.10,000/- (simple imprisonment for three months in default of payment of fine).

The Incident:

2. As per the case of the prosecution on the intervening night of 10th11th April, 2012 at about 2:00 a.m., the appellant committed the murder of his wife Shabana at House no.1166, Sarai Mahal, Churiwalan, Delhi-06 by thrusting a screw driver in her head. According to the prosecution, a call was made to the Control Room, Police Headquarters at about 2:03:35 a.m. on 11th April, 2012 by PW-6 Abrar Mirza from his mobile. The said information was recorded in PCR form Ex.PW-26/A by W/Constable Pooja PW-26. The deceased was removed to the hospital by the PCR van where she was declared brought dead. The investigation was assigned to PW-11 SI Md. Faiyaz who alongwith police officers PW-27 and PW-24, reached the spot and found one eye witness PW-3 Ballu Qureshi present. As per the prosecution, the said eye witness informed that the appellant had murdered the deceased and on the basis of the statement of PW-3, Rukka was prepared and thereafter the investigation was entrusted to PW-36 Inspector I.K. Jha. After completion of the investigation, charge-sheet was filed, cognizance of offence was taken and charge was framed against the appellant for offence punishable under Section 302 IPC. The appellant pleaded not guilty and claimed trial. The prosecution examined 36 witnesses in support of the case, the statement of the appellant was recorded under Section 313 Cr.P.C. and the appellant led the evidence of one witness in defence.

Submissions by Appellant:

3. The appellant through his appeal and arguments on his behalf by counsel submitted that both public witnesses PW-3 and PW-6 had turned hostile and therefore it was not a case of direct eye witness testimony being available and could only be proved on circumstantial evidence. However, even on circumstantial evidence, there was no last seen evidence, no recovery and no chance prints which ought to implicate the appellant for the crime. Only motive of quarrels between the appellant and deceased was sought to be proven by prosecution witnesses. The basis of conviction by the learned Trial Court was Section 106 of the Indian Evidence Act which was contrary to law and in support of this the counsel for the appellant relied upon inter alia Mangu Singh v. Dharmendra and Anr., (2015) 17 SCC 488; Reena Hazarika v. State of Assam, (2019) 13 SCC 289; Md. Yunis Ali Tarafdar v. State of West Bengal, (2020) Vol. 3 SCC 747.

Submissions by the Prosecution:

4. Learned Additional Public Prosecutor on behalf of the prosecution submitted that the appellant was rightly convicted since there was not only medical evidence available but also eye witness testimony, proof of motive and conduct of the appellant prior to the incident and other links in the chain of evidence. Learned APP submitted that the appellant and the deceased cohabited in the same house where the murder took place right till the time of the incident as husband and wife and therefore the burden shifted upon the appellant under Section 106 of the Indian Evidence Act to present an alibi or otherwise explain the circumstances against him. The appellant did present an alibi by examining DW-1 who deposed that the appellant was sleeping "in the home" between 10:30 p.m