We have heard the learned senior counsel
appearing for the appellant and the learned counsel appearing for the
respondent-State.
The facts expatiated
earlier would reveal that the appellant was convicted concurrently for
the aforesaid offences and there is concurrency even with respect to
the sentences imposed by the Court. In such circumstances, there is,
in fact, very little scope for interference in an appeal by Special Leave.
In such cases, overlooking of a vital piece of
evidence which would tilt the balance in favour of the convict-appellant
or that the finding is based and built on inadmissible evidence which
would100 impair the
prosecution case, are some such situations where this Court may interfere with.
When the contentions raised are pitted120
against the evidence on record, they would reveal no such circumstances. Still,
we will proceed to consider the contentions raised to find out any other
tenable grounds raised by the appellant which may persuade us to
entertain this appeal against the concurrent conviction.
The learned counsel for
the appellant contended that the plea of 'alibi' was not properly
appreciated and considered, especially with reference to the oral
testimony of DW-1. Despite the non-rupture of the hyoid bone,
the Courts wrongly200
concluded that the nature of the death was homicide. It is also
contended that no circumstances which irresistibly pointing to
the guilt of the appellant-convict were established by the prosecution though
the conviction was based on circumstantial evidence.
Per contra,240 the learned counsel appearing for the
respondent-State would submit that the circumstances that led to the
finding of guilt against the appellant were discussed in detail by the trial
Court and the High Court as the Appellate Court re-appreciated and
concurred with them besides adding additional reasons for confirming the
conviction as also the sentence. In short, it is submitted300 that since the cumulative effect
of such circumstances relied on by the Courts do not brook any hypothesis other
than the one irresistibly leading to the guilt of the appellant-convict, no
interference with the concurrent conviction as also sentence, is invited in
this case.
In view of the rival contentions, we have bestowed careful
consideration of the said contentions with360 reference to the materials on
record. As noted earlier, the incident which led to the death of Smt. Suman,
the wife of the appellant-convict, had occurred admittedly in her
matrimonial home. The case of the appellant-convict is that a careful400 scanning of the evidence on record would
reveal that the prosecution had failed to establish that it is a case of
homicide and in fact, it is a case of suicide.
Adding to the above
contentions, the learned counsel for the appellant would submit that the
appellant was implicated in this case and was convicted without
any satisfactory evidence much less any clinching evidence and
also disregarding the fact that it was he who attempted to save her life
and480 in that
regard after cutting the noose of the ligature he took her to the
hospital. While considering the contention, 500
we shall not lose sight of the fact that more often criminals would try
to dub a murder as suicidal or accidental death. The identification of
the nature of the death is, therefore, always an important medico-legal
problem.
In that regard, the Courts concerned have to study
the total evidence to discern whether death is a case of homicide or suicide or
accident. The concurrent finding in the case on hand with reference to the
evidence on record is that it is a case of homicide. Presumption is only
a rule in the realm of burden of proof and the600
trial Court and the High Court concurrently weighed the circumstances and gave
sturdy reasons to conclude that death of Suman is homicidal in nature and not
suicidal. In such circumstances, we are not persuaded to
entertain the concurrently repelled contention of the appellant that the
death of Suman was not homicidal.
Now, the question is
about the sustainability of the concurrent finding on the culpability
of the appellant. Of course, various contentions have been raised by the
appellant to assail the finding of guilt against him concurrently referred to
in the judgments of the trial Court and the High Court. 700 There can be no doubt that while
dealing with such a question of creation of fake scene by the720 appellant, absence of explanation by the
accused despite being bound by virtue of Section 106 of the Evidence Act is
also to be taken into consideration.
In the context of the
case on hand, the case established by the oral testimony of PW-8, Arti who is
the own sister of the deceased would show that at about 7 pm on the
fateful day the appellant came to the paternal home of the deceased and
informed that Smt. Suman hanged herself and800
immediately thereupon, herself, her mother and sister went along with him to
his house that is, matrimonial home of the deceased. The further fact
established through the mouth of the said prosecution witness is that upon reaching
there Suman840 was seen on her
knees on bed and still knotted by saree around the neck which, in turn, was tied
to a wood near the ceiling fan.
As per PW-8, despite the
opposition of their mother and her request to wait for the arrival of their
relatives, he cut the noose of the ligature immediately and took her to a
nearby hospital900 at Sector
9. Soon on check-up, the doctor declared that she was dead. In this context,
it is also worthy to note the oral evidence of DW-1, Subhash. DW-1 had
deposed that on that day, he along with the appellant went to Maitri Garden and
from there returned home between 6 pm and 7 pm and he got down960 near the lane leading to his house.
Thereafter, the appellant
came to him and informed that Suman had hanged herself. According to him,
thereupon, he along with the appellant went to the latter's house and
thereafter, he cut the noose of1000
the ligature and took Suman to the hospital where she was checked and declared
as dead. In this context, it is also relevant to note that
there is no scintilla of evidence suggesting that she was alive when
the noose was cut or that she breathed her last enroute to the hospital.
We have referred to the
evidence of DW-1 to show that the cutting of the noose of the ligature, as per
the version of prosecution witness as1080
also that of DW-1 was done only after the appellant went to the witnesses and
informed them of seeing Suman hang1100
herself. In short, going by the case of the prosecution or that of the defence
even after seeing Suman hang using her saree, he did not care to cut the noose
then and there and had chosen to do so only after witnesses were brought to the
scene of occurrence.1150
