Thursday, May 19, 2011

BHAGWAN DASS v. STATE (NCT) OF DELHI [2011] INSC 478 (9 May 2011)


Bhagwan Dass .. Appellant
State (NCT) of Delhi .. Respondent(s)

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 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.


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.


(Markandey Katju)` ..................................J.

(Gyan Sudha Misra) New Delhi;

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