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2011 (2) N.C.C. 161
SUPREME COURT OF INDIA
Markandey Katju and Hon’ble Mrs. Justice Gyan Sudha Misra
Criminal Appeal No. 1117 of 2011
BHAGWAN DAS – Appellant
Versus
STATE (NCT) OF DELHI – Respondent
Decided on : 09.05.2011
(B) Motive — In cases of circumstantial evidence motive is very important — Unlike cases of direct evidence where it is not so important (2011) 3 SCC 306 relied. (Para 6)
(C) Criminal Procedure Code, 1973, Secs. 161, 162(1), Proviso to Sec. 162(1) — Statement u/s 161 to the police — Admissibility in — No doubt a statement to the police is ordinarily not admissible in evidence in view of Sec. 162(1) Cr.P.C. — But as mentioned in the proviso to Sec. 162(1) Cr.P.C. it can be used to contradict the testimony of a witness — Mother of the accused had 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 /accused had told her that he had killed the deceased — On being so confronted with her statement to the police she denied that she had made such statement — But, the statement of witness to the police can be taken into consideration in view of the proviso to Sec. 162(1) of Criminal Code — And her subsequent denial in court, is not believable because she obviously had afterthoughts and wanted to save her son/(the accused) from punishment. (Para 8)
(D) Extra-judicial confession — Statement of mother to the police that her son/(the accused) had told her that he had killed the deceased — Such statement of accused held to be an extra-judicial confession voluntarily made and considered though the witness (mother of the accused) had denied that the accused made such a statement to her — Held that her statement to the police can be taken into consideration in view of the proviso of Sec. 162(1) Cr.P.C. (Para 8)
(E) Hostile Witness — 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. (Para 8)
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¼c½ (Motive) ^gsrq* & ifjfLFkfrtU; lk{; ls lEcfU/kr dslst esa ^gsrq* ije vko';d gS tcfd lh/ks lk{; ls lEcfU/kr dslst esa ;g bruk vko';d ugha gS & (2011) 3 SCC 306 ij vk/kkfjrA ¼izLrj 6½
¼l½ n.M izfØ;k lafgrk] 1973] /kkjk 161] 162¼1½] /kkjk 162¼1½ dk izfrca/k & iqfyl dks /kkjk 161 ds rgr c;ku fn;k tkuk vkSj mldh vuqeU;rk & fu%lansg iqfyl dks fn;k x;k c;ku /kkjk 162(1) CrPC ds rgr lkekU;r% lk{; esa vuqeU; ugha gS ijUrq tSlk fd /kkjk 162(1) CrPC ds izfrca/k esa n'kkZ;k x;k gS] bldk iz;ksx lk{kh ds lk{; dks fojks/kkHkk"kh n'kkZus ds fy, fd;k tk ldrk gS & vfHk;qDr dh ekrk dks Hkh fopkj.k U;k;ky; ds le{k lk{kh ds :i esa is'k fd;k x;k Fkk vkSj mldh vf/kijh{kk esa og vius ml c;ku ds lkeus vkbZ Fkh tks mlus iqfyl dks fn;k Fkk] vkSj ftls crk;k Fkk fd mlds yM+ds us mls crk;k Fkk fd vfHk;qDr }kjk e`rd dh gR;k dh xbZ Fkh & bl izdkj iqfyl dks fn;s vius c;ku dk lkeuk djus ij mlus bl ckr ls bUdkj fd;k fd mlds }kjk ,slk dksbZ c;ku fn;k x;k Fkk & ijUrq lk{kh dk c;ku tks iqfyl dks fn;k x;k Fkk] ij /kkjk 162(1) CrPC ds izfrcU/k ds rgr fopkj fd;k tk ldrk gS & vkSj ml ds }kjk ckn esa U;k;ky; esa bUdkj fd;k tkuk fo'oluh; ugha gS D;ksafd mlus lksph le>h ckr Li"V :i ls dgh Fkh vkSj og vius yM+ds vfHk;qDr dks n.M ls cpkuk pkgrh FkhA ¼izLrj 8½
¼n½ vfrfjDr U;kf;d LohdkjksfDr & ek¡ dk c;ku tks iqfyl dks fn;k x;k Fkk fd mlds yM+ds@vfHk;qDr }kjk mls crk;k x;k Fkk fd mlus gh e`rd dh gR;k dh Fkh & vfHk;qDr dk ,slk c;ku] vfrfjDr U;kf;d LohdkjksfDr ekuh xbZ tks LosPNk ls nh xbZ Fkh vkSj ml ij fopkj fd;k x;k] ;|fi vfHk;qDr dh ek¡@lk{kh }kjk bUdkj Hkh fd;k x;k Fkk fd vfHk;qDr }kjk mlls ,slk dqN dgk x;k Fkk & fu.kZ; esa dgk x;k fd iqfyl dks fn;k x;k ml dk ,slk c;ku /kkjk 162(1) CrPC ds izfrca/k ds rgr fopkj.k esa fy;k tk ldrk gSA ¼izLrj 8½
¼;½ i{kæksgh lk{kh & fdlh i{kæksgh lk{kh dk lk{; iw.kZ :is.k vLohdkj ugha fd;k tk,xk ;fn og vfHk;kstu vFkok vfHk;qDr ds fgr esa cksyk gks & cfYd ml ij xaHkhjrk ls fopkj fd;k tk ldrk gS vkSj c;ku dk og Hkkx tks vfHk;kstu ds dsl esa vFkok cpko i{k ls lEcfU/kr gks dks Lohdkj fd;k tk ldrk gSA ¼izLrj 8½
Markandey Katju, J.—
“Hai maujazan ek kulzum-e-khoon kaash yahi ho
Aataa hai abhi dekhiye kya kya mere aage”
–Mirza Ghalib
1. This is yet another case of gruesome honour killing, this time by the accused-appellant of his own daughters.
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, Srinivas. 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 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 3 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.
7. We have carefully gone through the judgment of the trial court as well 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 behavior 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 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 dauther for about 10 hours was a 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 comm
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