22 High Court dismissed the appeal filed by the appellant…………………………………………… Before dealing with the matter in necessary details, we may draw a brief outline to indicate the contours of the forthcoming discussion. However, the Trial Court held that all the essential and material facts were duly established in the evidence adduced by the prosecution, including that the deceased children were last seen in the company of the appellant, who took them to canal and later on informed the staff at the Haiderpur Water Plant and at the Petrol Pump as also to the police that they accidentally fell into the canal; that the cause of death of both the children had been asphyxia as a result of manual strangulation; and that the appellant was a drunkard who doubted the chastity of his wife and thought that he was not the father of the deceased children. The High Court again minutely analysed the evidence on record and, while rejecting the contentions urged on behalf of the appellant, dismissed the appeal and affirmed the findings and conclusions of the Trial Court.
It has also been contended that there had been a fundamental defect in the trial when the Trial Court omitted to examine the capacity of the appellant in terms of Section 329 of the Code of Criminal Procedure, 1973 while ignoring the material evidence on record to the effect that the appellant was not a person of sound mental disposition, for he was admitted to a rehabilitation centre for de-addiction and was discharged against the advice of the centre. With reference to the outline as above and looking to the questions arising for determination in this appeal, the relevant factual and background aspects could be noticed, in brief, as follows: 4.1. The prosecution case further had been that the appellant attempted to project as if the children accidentally fell into the canal and in that effort, he jumped into the canal and, after swimming for some distance, came out and then, went to the nearby office 6 of Water Treatment Plant to inform the staff present there about his sons having accidentally fallen into the canal; and thereafter, he also went to a nearby Petrol Pump and narrated the same story to one of the employees and made a call at 100 number to the police. It was alleged that during interrogation, the appellant confessed to the crime while stating that he doubted the chastity of his wife and suspected that the children were not his sons.
The peculiar feature of the case had been that while two of the witnesses, PW- 7 Mahender Kumar Yadav, uncle of the wife of the appellant, and PW-8 Rajender Yadav, another uncle of the wife of the appellant, attempted to suggest that the appellant was a drunkard who used to give beating to his wife and suspected her character but, PW-5 Bishan Singh, brother of appellant, as also PW-9 Sunita Yadav, wife of the appellant, did not support this version. Though elaboration on the entire prosecution evidence is not necessary for the purpose of the present appeal but, having regard to the contentions urged, we may take note of the relevant depositions concerning material factors namely, the appellant’s addiction to alcohol and his admission to, and discharge from, the rehabilitation centre; the appellant’s conduct towards his wife; the appellant’s version immediately after the event leading to the demise of his two sons; and the medical opinion after post-mortem of the dead bodies of the victim children. When I made a telephonic call at the said deaddiction centre on friday then I came to know that my uncle had got accused Prem Singh discharged from 9 the said centre.
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Had Prem Singh not been discharged from the said deaddiction centre the present incident could have been avoided. I never stated so in my statement recorded by the police and the IO had mentioned the said facts in my statement on his own. In our said centre accused Prem Singh present in the court today (correctly identified) was admitted on 20.11.08 for de-addiction of his habit of consuming ahlcohol. His wife Sunita, Sister Baladevi, father Girdhari Lal and Cousin Puran Singh came at our centre to meet him. On 29.04.2009 Girdhari Singh along with one other person got Prem Singh discharge from our centre against our advice as I had advised him to complete the course of 7-9 months. We may take note of the relevant parts of the statements of PW-7, PW- 8, PW-5 and PW-9, in that order, as under: – “ PW7- Statement of Mahender Kumar Yadav, Aged-52 years S/O Late Sh. On advise of her father accused was admitted to the above centre for his treatment by my niece but on 29.04.2004 accused’s father has relieved his son from the Nasha Mukti Kendr Centre. At the time of recovery of the dead body accused Prem Singh was claiming that both the children have been drowned in the canal on their own but later on after his arrest he admitted that he has committed murder of his both the children. Police recorded the disclosure statement of accused Prem Singh in my presence same is EXPW-7/D signed by me at pt A. I did not report the matter to the police regarding conduct of accused qua my niece and the children. Sunita W/O accused Prem Singh is my niece who has been married with accused for about 12-13 years before. On the day of release accused Prem Singh has given severe beatings to his wife Sunita and both his children and in turn Sunita came to our house leaving children at the house of accused at Haider Pur. Confronted from statement EX PW-8/DA where it is not so recorded.
At the time of incident my brother Prem Singh was unemployed. My brother Prem Singh was once admitted in Nasha Mukti Kendr at Auchandi and he remained there for about one year. Police had recorded my statement at PP Prashant Vihar but I do not know the date when my statement was recorded. 14 I do not remember that my statement EX PW-5/A was recorded on 13.06.2009 or not. it is correct that on receiving the information from Rohini Court police staff on 03.05.2009 they informed that they got an information for my brother Prem Singh that when both his son Jitender and Sunny were present at Haider pur Canal and they were running and playing in front of him they were drowned in the canal and flown (Beh Gaye) in the canal.
It is wrong to suggest that accused is my brother as such I am not giving the fair statement which I have got recorded during the police investigation. Before marriage, I used to reside with my maternal uncle Mahender Kumar Yadav since the age of three years. On the day of incident, I went to the house of my maternal uncle as my Nani was ill leaving my both the sons with their father/accused. APP for the State I have not signed my statement on 4.5.2006. Stated that my husband was not taking liquor at all and the doctors of Nasha Mukti Kender stated that they will treated my husband from a good doctor.
It is wrong to suggest that police have also recorded my statement and the same is mark PW9/B and I have stated in the statement that after marriage I came to know that accused Prem Singh was in a habit of taking liquor. It is wrong to suggest that two and half years before the incident, because of beating and ill behaviour of accused Prem Singh, I alongwith my both sons went to the house of my maternal uncle and living in their house or that accused Prem Singh used to put filthy and dignatory allegations on me and stated to me ‘characterless’ ( Idher Udher Ke Adamiyo se Muh Marvati Firthi Hai ) (confronted with portion C to C-1 of Statement mark PW9/B wherein it is so recorded. (Confronted with portion D to D-1 of statement mark PW9/B wherein it is so recorded).
It is wrong to suggest that accused has never suspicion on my character or that to faded this issue I am deposing falsely. These facts were duly established in the testimony of PW- 4 Mahesh Kumar Sharma and PW-6 Komal Ram related with Haiderpur Water Plant as also by PW-1 Naresh Kaushik, the delivery boy at Indian Oil Petrol Pump. On 6.05.2007 some police officials alongwith accused whose name I came to know Prem Singh arrived at my petrol pump and I informed the police that he is the person who had made the 18 telephonic call to police on 03.05.2009 at 8.15 p.m from my petrol pump.
Accused Prem Singh came to petrol pump on 03.05.2009 at about 8.15 p.m. The fact that the dead bodies of both the children carried various injuries including those on neck and the medical opinion that they died due to asphyxia as a result of manual strangulation came to be duly established in the testimony of PW-14 Dr. After postmortem examination I opined cause of death as asphyxia as a result of manual strangulation. After perusal of the viscera report and PM report I am of the final opinion the cause of death is asphyxia as a result of manual strangulation inflicted by other party. On internal examination of neck, the neck tissue was bruised on front end sides and laceration over thyroid cartilage. After postmortem examination I opined cause of death as asphyxia as a result of manual strangulation. It is incorrect to suggest that I have not conducted the postmortem of dead body of Jitesh and Sunny. The cross-examination of this witness PW-18 Sunil Kumar reads as under: – “On 3.5.2009, I reached at the spot at Haiderpur Canal alongwith constable Het Ram around 7.45 p.m.
It is wrong to suggest that I am deposing falsely or that accused is innocent and has been falsely implicated in this case or that I did not conduct the investigation and did not prepare the documents are prepared by me.
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It is wrong to suggest that accused was apprehended on 03.05.09 from the Haiderpur water treatment plant. It is wrong to suggest that the accused is innocent who is falsely implicated in this case or that he did not commit the alleged offence or that I did not conduct investigation properly. After having heard the parties and having examined the record in its totality, the Trial Court found the prosecution case amply established by cogent and convincing chain of circumstances, pointing only to the guilt of the appellant, who caused the death of victim children by strangulation and also caused the evidence to disappear by throwing the dead bodies into the canal. The prosecution has placed on record certain circumstances to bring home guilt of the accused regarding murdering of his sons which are as follows: (a) Accused Prem Singh and his deceased sons namely Jitesh and Sunny were lastly admittedly together with him till they were alive (b) Motive and opportunity for the accused Prem Singh to commit murder of his sons. (b) Motive & Opportunity for the accused Prem Singh to commit said offence: The accused Prem Singh was certainly having ample opportunity to strangulate his children as it was about 7.45 p.m on that day when he took them to the Canal and admittedly, none else was present there.
(c) Conduct of the accused : The conduct of the accused Prem Singh has already been discussed at length that firstly he took both his sons to the Haiderpur Canal where he manually strangulated them and threw their dead bodies in the Canal and then he himself jumped into the Canal and swam for a considerable distance and came out, so that he could tell the others that he had made genuine efforts to save them but in vain which has been falsified as already discussed. (d) Medical Evidence : As per record, though the accused Prem Singh has stated that both the children had died of drowning and had seen them drowning, yet their postmortem examinations reports have falsified his version which have been duly proved on records by Dr.V.K.Jha who has categorically deposed that both the children were firstly manually strangulated which injuries were antemortem in nature and were sufficient in ordinary course of 24 nature to cause their deaths and the deaths of both the deceased were the result of such strangulation and not of drowning which have entirely falsified the version of the accused that his sons had died due to drowning and it is proved that they did not die of drowning but of manual strangulation. The court is of the considered opinion that :- (1) There is sufficient evidence on the record as lead by the prosecution regarding occurance and that the accused Prem Singh had murdered his sons Jitesh and Sunny which has nowhere been rebutted or shown to be false or manipulated and it is duly proved that he was lastly present with both the children and had strangulating them after which he threw their dead bodies in the Canal and accordingly there is sufficient evidence on record from which the inference of guilt is sought to be drawn against the accused Prem Singh which has been cogently and firmly established on record. (2) Prosecution has also proved that the circumstances have unerringly pointed towards the guilt of the accused Prem Singh regarding committing murders of Jitesh and Sunny at the relevant date, time and place after which he also caused the evidence to disappear by throwing their dead bodies in the Canal at which point of time, he intended to screen himself from Legal Punishment and gave information in this regard which he himself knew and believed to be false. Since prosecution has succeeded in bringing home guilt of the accused on record beyond reasonable doubt, accordingly, accused Prem Singh is convicted for committing offences as punishable under section 302/201 IPC. The Trial Court, in its order dated 08.09.2011, after taking note of all the facts and circumstances of the case and the nature of crime committed by the appellant, considered it appropriate to award the necessary punishments and, accordingly, sentenced him to rigorous imprisonment for life with fine of Rs. It was contended that rather than discharging this burden, the appellant gave false information about accidental drowning of the children, as clearly established by independent witnesses. A very important factor which is to be noticed at this stage is that there is no cross-examination by the appellant regarding his not having gone to canal along with sons and having not informed PW-4 and PW-6 regarding the drowning of his sons who were with him and had drowned while playing. On 06.05.2009, he had identified the appellant in the presence of the police officials as the person who had made a call at 100 number on 03.05.2009 at 8:15 p.m. In view of the testimonies of PWs-1, 4, 6 and 9, in our view, it stands firmly established that the children were with their father as per the testimony of PW-9. This witness has also testified that the appellant used to comment that the children did not belong to him but to someone else and, in fact, had attempted to kill the children in the park by giving them electric shock. PW-8, Rajender Yadav has also testified that his niece was married to the appellant and whenever Sunita came to their house, she complained that appellant used to abuse her and beat her as well as the children. In the light of the testimonies discussed above, the submission of learned counsel for the appellant that the appellant has been falsely implicated or that there are material discrepancies in their testimonies or the fact that the wife of the appellant has turned hostile thus there is no ground to convict the appellant, are all without any force. The learned counsel has contended that the chain of circumstances in this case is not complete, particularly when the allegations of strained relationship of the appellant and his wife have not been proved and in any case, the prosecution has failed to establish motive for the appellant to murder his own children; that the appellant was incapable of understanding the nature of his act when admittedly he was in the habit of consuming liquor, was admitted to rehabilitation centre, and his discharge was taken against the advice of the centre; that the Trial Court failed in its duty to examine the mental capacity of the appellant in terms of Section 329 CrPC and hence, the entire trial stood vitiated; and that in any case, mens rea could not be imputed on the 30 appellant, who deserves to be given benefit of doubt or at least the benefit of the Exceptions to Section 300 IPC.
In the present case, according to the learned counsel, the motive set up by the prosecution about the alleged strained relationship of the appellant with his wife was not a motive strong enough for the appellant to commit the murder of his children and, in any event, wife of the appellant, PW-9, did not support the case of the prosecution regarding such allegations.
According to the learned counsel, even if the evidence of PW-2 and PW-3 may not be sufficient to give the benefit of Section 84 IPC, it definitely gives rise to a doubt with regard to the mental capacity of the appellant. Manjuben : 2019 SCC OnLine Guj 6937 and has submitted that, in the present case, looking to the background factors concerning mental capacity of the appellant appearing in evidence, it was the duty of the Trial Court to examine if he was of unsound mind and consequently incapable of making his defence. In this regard, the learned counsel has also referred to a decision of Bombay High Court in the case of Ajay Ram Pandit v. State of Delaware decided on 02.03.2012 to submit that therein the accused was permitted to raise the defence of competence even though it was not as such raised by the counsel and has submitted that the Trial Court ought to have ordered examination of the accused with regard to the propensity/capacity.
The learned counsel would submit that, in the present case, the witnesses examined to establish the guilt were not cross-examined on the relevant factors, particularly as regards mental capacity of the appellant, which ought to have been ensured by the Trial Court. While refuting the submissions made on behalf of the appellant, learned counsel for the respondent-State has argued that the circumstantial evidence on record undoubtedly lead to the conclusion of guilt of the appellant and no case for interference is made out. Learned counsel for the respondent-State has emphatically submitted that the fundamental fact remains rather undeniable that the appellant was last person in the company of the deceased children and is amply established by the deposition of PW-1, the attendant at the petrol pump, and PW-4 and PW-6, the personnel on duty at the water treatment plant.
Thus, according to the learned counsel, in the given set of circumstances, when the death of the victim children was homicidal in nature and the appellant rather attempted to project a false narrative that they fell into the canal accidentally, the concurrent findings of his conviction cannot be said to be suffering from any infirmity. As regards the plea of unsoundness of mind of the appellant, learned counsel for the respondent-State has submitted that such a plea was never raised in the defence or in evidence or in appeal or even in the petition filed before this Court. Learned counsel for the respondent-State has also submitted that the plea of unsoundness of mind, if at all, could only be raised by the defence to rule out the forming of mens rea but a case of purported subsequent mental illness cannot be raised to invoke the exceptions of Section 300 IPC.
Learned counsel for the respondent-State has further submitted that the suggestions to the effect that the appellant might be having requisite knowledge but was lacking an intention to commit the crime remains untenable for the reasons, inter alia, that the appellant meticulously planned the crime by taking his children to the canal at a time when he was vested with their sole custody in the absence of his wife; he mercilessly strangulated the children one by one and if at all an opportunity of realisation were to be visualised, at least after killing the first child he had ample time and opportunity to restrain himself and not to kill the other one. The State of Uttar Pradesh: 2022 SCC OnLine SC 176 wherein, after referring to Articles 134 and 136 of the Constitution of India and Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 as also with a detailed reference to the relevant decisions, this Court has summed up the subtle distinction in the scope of a regular appeal and an appeal by special leave in the following words: – 39 “ 20.
This Court would not interfere with the concurrent findings of fact based on pure appreciation of evidence nor it is the scope of these appeals that this Court would enter into reappreciation of evidence so as to take a view different than that taken by the Trial Court and approved by the High Court.” The principles relating to circumstantial evidence; burden of explanation; hostile witness; and motive 13. has laid down in Hanumant case: “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. State of Maharashtra where the observations were made: 41 “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” ”
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It is also pertinent to notice that in the said case of Sharad Birdhichand Sarda, this Court also enunciated the principles for using the false explanation or false defence as an additional link to complete the chain of circumstances in the following terms: – “ 158. before a false explanation can be used as additional link, the following essential conditions must be satisfied: ( 1 ) various links in the chain of evidence led by the prosecution have been satisfactorily proved, ( 2 ) the said circumstance points to the guilt of the accused with reasonable definiteness, and ( 3 ) the circumstance is in proximity to the time and situation. Moving on to the other applicable provisions and principles, we may usefully take note of Section 106 of the Evidence Act, casting burden of proving a fact especially within knowledge of any person, and a few relevant decisions in regard to its operation qua an accused. A judge also presides to see that a guilty man does not escape. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in 44 the chain of circumstances to make it complete. Taking note of the salient features of the case and operation of the requirements of Section 106 of the Evidence Act, this Court observed, as regards consideration of the relevant part of evidence of a hostile witness and the effect of failure on the part of the accused to discharge his burden, as follows: – “ 6. Therein, with reference to Section 106 of the Evidence Act, a 3-Judge Bench of this 45 Court noted that if the accused had a different intention, the facts are especially within his knowledge which he must prove; and if, in a case based on circumstantial evidence, the accused evades response to an incriminating question or offers a response which is not true, such a response, in itself, would become an additional link in the chain of events. As regards the relevancy of motive in a case based on circumstantial evidence, the weight of authorities is on principles that if motive is proved, that would supply another link in the chain of circumstantial evidence but, absence thereof cannot be a ground to reject the prosecution case, though such an absence of motive is a factor that weighs in favour of the accused. This Court has also held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. It is amply established on record that the deceased children, aged 9 years and 6 years respectively, died an unnatural death and though the bodies were retrieved from canal, it had not been a case of their drowning 47 but, as specifically proved by the post-mortem reports and the testimony of PW-14 Dr. There is nothing on record to disbelieve the testimony of PW-14 Dr.
The fact that the dead bodies of the victim children were indeed retrieved from canal is hardly a matter of doubt and has indeed been established in the testimony of PW-18 SI Sunil Kumar, PW-17 Inspector Pratap Singh as also other private witnesses, including the relatives of the appellant and his wife. In this regard, even before looking at any other evidence, suffice it to notice that PW-9 Sunita Yadav, wife of the appellant, who otherwise did not support 48 the prosecution case, clearly stated the crucial fact that on the day of incident, the children were left by her with the appellant. When the statements of independent witnesses PW- 1, PW-4 and PW-6 are read together with the statement of PW-9, wife of 49 the appellant, not only the circumstance of the deceased children being lastly in the company of the accused-appellant is established but, further to that, it is also established that the appellant attempted to create a false narrative of accidental drowning of the children. In the given set of circumstances, when the deceased children were in the company of the appellant, who was none else but their father and when their death was caused by manual strangulation, the burden, perforce, was heavy upon the appellant to clarify the facts leading to the demise of his sons, which would be presumed to be specially within his knowledge.
That being the position, learned counsel for the appellant has endeavoured to submit that an important link in the chain of circumstances, i.e., motive, has not been established and in that regard, reliance has particularly been placed on the statement of the wife of the appellant PW-9 Sunita Yadav, who did not support the prosecution allegations about strained relationship of the appellant and herself. The submission that strained relationship of appellant with his wife may not provide sufficient motive for killing the children cannot be accepted for the reason that the motive projected in the present case had been that the appellant doubted the paternity of the deceased children and suspected that they were not his sons. Differently put, in our view, when all the facts and circumstances are taken together, the present one is not a case where there had been any missing link in the chain of circumstances, leading only to the conclusion of the guilt of the appellant. The chain of circumstances against the appellant being complete and strong, learned counsel for the appellant has endeavoured to make out a case of alleged unsoundness of mind of the accused-appellant and has developed a few contentions in that regard that the intent of committing crime cannot be imputed on the appellant looking to his mental instability; and that the entire trial stood vitiated for want of compliance of Section 329 CrPC. — (1) If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case.
Case Title: PREM SINGH Vs. STATE OF NCT DELHI (2023 INSC 3)
Case Number: Crl.A. No.-000001-000001 / 2023
