Full Text
HIGH COURT OF DELHI
CRL.A. 128/2012
JUDGMENT
RAJ KUMAR ………. Appellant
Through: Mr. Harish Pandey with Mr. Raghvendra Mishra and Mr. Manish Kumar, Advocates.
Through: Ms. Aashaa Tiwari, APP for State.
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J.
1. The present appeal has been filed under Section 374 of the Code of Criminal Procedure and is directed against the judgment dated 22.10.2011 and order on sentence dated 29.10.2011 passed by the Additional Sessions Judge, New Delhi, in Sessions Case No. 52/2010, by virtue of which the appellant has been convicted under Section 302 of the Indian Penal Code and under Section 25/27 of the Arms Act, and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 25,000/- for the offence punishable under Section 302 of the Indian Penal Code, and in default of the payment of fine to further undergo rigorous imprisonment for a period of one year. The appellant was further sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- for the offence punishable under 2016:DHC:4506-DB Section 25 of the Arms Act and in default of payment of fine to further undergo simple imprisonment for one month. The appellant was also sentenced to rigorous imprisonment for three years and to pay a fine of Rs. 5,000/- for the offence punishable under Section 27 of the Arms Act and in default of payment of fine to further undergo simple imprisonment for three months. All the sentences were ordered to run concurrently. It was also ordered that life imprisonment shall not be less than 25 years and it cannot be commuted less than 25 years.
2. The brief facts of the case as noted by the trial court are as under: “On 15.08.2009 DD No. 21 A was received by SI Sishu Pal who reached at the place of occurrence H. No. 158/3, Gali Sanatan Dharamsala and saw one woman and one man lying in pool of blood and were dead. The woman had stab injury on left side chest which was bleeding and the male was having four wounds on his stomach and one on left foot and intestine had come out from one wound of stomach on account of injury and the meantime ACP/SHO also reached at the spot. Ct. Ram Naresh and HC Jayanti Prasad also reached at the spot and HC Jayanti Prasad handed over the copy of DD No. 21 to SI Sishu Pal. One Ashok Kumar met there and his statement was recorded. He stated that Ram Chander was living with his wife, son and daughter in Sabjimandi Maujpur for last 18-20 years and his wife and son had pre deceased him. Ram Chander was having weak financial position and therefore his daughter Seema was got married on 5.5.2003 with accused Raj Kumar by the mohalla people. After some days of marriage, accused Raj Kumar had started ill-treating her and was beating her. They made him understand many times but he did not mend his way. They were not insisting much accused as he may desert Seema. Seema had started living with his father for last two months at house no. 158/03 Gali Sanatan Dharamsala at the ground floor. It is stated that he was standing at about 6:00 p.m. in front of his house near Hotel Apna and in the meantime accused Raj Kumar was running from street and was saying that he had killed both of them and he was having knife in his hand. Suspecting the same, he went running to the house of Ram Chander and saw Ram Chander and his daughter were lying in pool of blood. On the basis of his statement FIR was registered. Spot was inspected by crime team and was photographed. The dead bodies were sent to mortuary, GTB Hospital. Blood stained and blood cement concrete and earth control were seized from the spot. On 16.08.2011 the dead bodies were identified and inquest papers were prepared. The inquest papers of Seema were prepared by Tehsildar but postmortem could not be conducted and on 17.08.2011 after the postmortem, the dead bodies were handed over. On 19.08.2011, an information was received that accused Raj Kumar would surrender in the court and thereafter accused was arrested after taking permission from the court and he made disclosure statement he can get recovered the knife. He was remanded to two days police custody remand. Again he was interrogated and he made another disclosure statement and stated that he can get recovered knife and shirt and is wearing pant which was worn by him at the time of incident. The pant was taken and seized which was having blood stains. Thereafter on 21.08.2011 he was again taken on police custody remand for one day and one button actuated knife was recovered from railway track. He was again interrogated and further disclosed that he had previously stated falsehood that he had thrown shirt along with knife from train and he can get recovered the shirt from Sujjanpur and he pointed the house of son of his maternal uncle Sunil Sharma and produced shirt from his house which was seized. Subsequent opinion was taken regarding knife and after completion of the investigation the charge sheet filed.”
3. Charges for the offence punishable under Section 302 of the Indian Penal Code and under Section 25 read with Section 27 of the Arms Act were framed against the appellant, to which he pleaded not guilty and claimed trial.
4. In order to bring home the guilt of the appellant, the prosecution examined 27 witnesses in all. Thereafter, the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure wherein he pleaded his innocence by denying all the incriminating circumstances. The appellant further took the plea of alibi and claimed to be falsely implicated.
5. Challenging the findings of the trial court, Mr. Harish Pandey learned counsel appearing on behalf of the appellant contended that conviction of the appellant by the trial court is based on conjectures and surmises and on erroneous appreciation of evidence resulting in flagrant miscarriage of justice which cannot be sustained in law.
6. Counsel for the appellant fervently urged that considering the number of injuries on the deceased, it is highly improbable that there would be no blood on the shirt worn by the appellant.
7. Counsel for the appellant further contended that it is unbelievable that at the time of arrest of the appellant he was wearing the same blood stained pants which was worn by him at the time of the incident.
8. On the last seen evidence, counsel for the appellant strongly urged that the evidence of last seen by itself, is a weak piece of evidence and therefore it may not be safe for the court to base the conviction of the appellant on such an evidence solitarily, unsupported by any other circumstantial evidence.
9. The learned counsel vehemently argued that the statement of PW[2] Smt. Daya Rani (landlady) was inconsistent and did not support the case of the prosecution and further submitted that there were material contradictions in the testimonies of all the public witnesses.
10. To substantiate his arguments on the last seen theory, learned counsel for the appellant has relied upon the judgment of the Hon‟ble Supreme Court in Rishi Pal Vs. State of Uttarakhand reported in (2013) 12 SCC 551, wherein it was observed as under:
21. Similarly in Arjun Marik v. State of Bihar [1994 Supp (2) SCC 372: 1994 SCC (Cri) 1551] this Court reiterated that the solitary circumstance of the accused and the victim being last seen will not complete the chain of circumstances for the Court to record a finding that it is consistent only with the hypothesis of the guilt of the accused. No conviction on that basis alone can, therefore, be founded.
24. We may also refer to State of Goa v. Sanjay Thakran[(2007) 3 SCC 755: (2007) 2 SCC (Cri) 162] where this Court held that in the absence of any other corroborative piece of evidence to complete the chain of circumstances it is not possible to fasten the guilt on the accused on the solitary circumstance of the two being seen together.
26. Finally, in Jaswant Gir v. State of Punjab [(2005) 12 SCC 438: (2006) 1 SCC (Cri) 579] this Court held that it is not possible to convict the appellant solely on the basis of “last seen” evidence in the absence of any other links in the chain of circumstantial evidence; the Court gave benefit of doubt to the accused persons.”
11. Reliance was also placed on Surender Prashad Singh Vs. State in Crl. Appeal No. 245/2002, wherein this court observed as under:
12. Reliance was further placed on the Judgment of this Court titled as Sandeep Vs. State (NCT of Delhi) (Crl. Appeal No. 1377/2011), wherein last seen evidence theory was discussed in detail and held as under:
13. The learned counsel submitted that the prosecution has failed to establish the motive behind the alleged offence and further submitted that in the cases of circumstantial evidence, motive plays a pivotal role in proving the guilt of the accused. The counsel further relied upon Rishi Pal Vs. State of Uttarakhand reported in (2013) 12 SCC 551, wherein the Hon‟ble Supreme Court observed as under: “15. The second aspect to which we must straightaway refer is the absence of any motive for the Appellant to commit the alleged murder of Abdul Mabood. It is not the case of the prosecution that there existed any enmity between Abdul Mabood and the Appellant nor is there any evidence to prove any such enmity. All that was suggested by learned Counsel appearing for the State was that the Appellant got rid of Abdul Mabood by killing him because he intended to take away the car which the complainant-Dr. Mohd. Alam had given to him. That argument has not impressed us. If the motive behind the alleged murder was to somehow take away the car, it was not necessary for the Appellant to kill the deceased for the car could be taken away even without physically harming Abdul Mabood. It was not as though Abdul Mabood was driving the car and was in control thereof so that without removing him from the scene it was difficult for the Appellant to succeed in his design. The prosecution case on the contrary is that the Appellant had induced the complainant to part with the car and a sum of Rs. 15,000/-. The Appellant has been rightly convicted for that fraudulent act which conviction we have affirmed. Such being the position, the car was already in the possession and control of the Appellant and all that he was required to do was to drop Abdul Mabood at any place en route to take away the car which he had ample opportunity to do during all the time the two were together while visiting different places. Suffice it to say that the motive for the alleged murder is as weak as it sounds illogical to us. It is fairly well-settled that while motive does not have a major role to play in cases based on eye-witness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. Absence of strong motive in the present case, therefore, is something that cannot be lightly brushed aside.”
14. Reliance was further placed on the view taken by the Hon‟ble Supreme Court in Tomaso Bruno Vs. State of U.P. reported in 2015 (1) SCALE 498 and held as under:
15. On the aspect of recovery, the counsel for the appellant submitted that the alleged recovery of weapon used in the commission of crime and the clothes worn by the appellant must not be given any credence as there is incurable discrepancy with regard to the place and manner of the recovery. This view was further fortified by the Apex Court in Mohan Singh Vs. State of Haryana reported in (1995) 3 SCC 192, whereby he Hon‟ble Supreme Court held as under:
16. Lastly, the counsel has relied upon Narender Singh Vs. State (Cri. Appeal No. 560/1999). The relevant paras are as under:
17. On the converse, Ms. Aashaa Tiwari learned Additional Public Prosecutor appearing on behalf of the State strongly refuted the submissions made by the counsel for the appellant and lent support to the judgment on conviction and order of sentence passed by the Sessions Judge. Counsel argued that the prosecution has been able to prove their case beyond any shadow of doubt. The testimonies of the witnesses so examined prove the guilt of the appellant. Further the testimony of PW[1] Ashok Kumar stands corroborated from the testimony of PW[2] Smt. Daya Rani who are witnesses to the last seen.
18. Counsel for the State further submits that on the basis of evidence produced on record as well as the circumstances proved by the prosecution forms a complete chain pointing unequivocally towards the guilt of the appellant.
19. We have heard learned counsel for the parties at considerable length and given our anxious consideration to the arguments advanced by them. We have also gone through the entire material placed on record including the record of the trial court.
20. In the facts of the present case, there is no direct evidence to prove the commission of crime of murder by the appellant, and the case primarily rests upon the circumstantial evidence only. It is a trite law that where the case is based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be 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. In other words, there must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
21. In this case, on consideration of evidence and materials on record and after considering the arguments advanced, we have found that the following circumstances were relied upon by the prosecution to prove the guilt of the appellant:
1. The circumstance of last seen of the appellant corroborated by the testimony of PW[2] Smt. Daya Rani.
2. Appellant was seen running with knife in his hand by PW[1], 3 and 4.
3. Weapon of offence used in commission of crime got recovered at the instance of the appellant.
4. Medical Evidence.
5. Forensic evidence establishing the spot and presence of human blood on the pant of the appellant.
22. What, therefore, needs to be seen is whether the prosecution has established the incriminating circumstances upon which it places reliance and whether those circumstances constitute a chain so complete as not to leave any reasonable ground for the appellant to be found innocent.
23. Based on the testimony of PW[2] Smt. Daya Rani; the circumstance No. 1 i.e. the presence of the appellant at the spot was proved. PW[2] Smt. Daya Rani (landlady) in her testimony deposed as under: “…I had asked the father of the deceased Seema namely Sh. Ram Chander before the incident as to why he does not send his daughter to her matrimonial home and on this, he told me that the husband of his daughter used to beat her and as such, he was not sending his daughter to her matrimonial home. xxx …deceased Seema was residing at the house of her father for the last about two months before the incident and during that period, Raj Kumar came there and quarrel on this account. It is wrong to suggest that I have stated to the police in my statement and it so happened that on 15.08.2009, at about 5.30 PM, when I get down from the 1st floor, I saw that accused Raj Kumar was quarrelling with his wife Seema and his father-in-law Ram Chander and thereafter, I went upstairs and after ten-fifteen minutes, I heard noise of crying and on this, I immediately get down and saw that Seema and Ram Chander were lying in the pool of blood and thereafter, immediately, I came out in the street and called one boy who called the police over 100 number. (Confronted with the statement Ex.PW-2/A from portion A to A, wherein it is so recorded).
24. PW[2] Smt. Daya Rani in her cross-examination stated as under: “It is wrong to suggest that accused Raj Kumar had not come at the tenanted portion where Ram Chander was residing in my house on 15.08.2009, at any time. xxx It is further wrong to suggest that there is cordial relations between Ram Chander, Seema and accused Raj Kumar.”
25. Based on the testimony of PW[1] Ashok Kumar; the circumstance No. 2 i.e. the appellant was running with knife in his hand after the commission of the crime stands proved. PW[1] Ashok Kumar who is complainant in the present case testified as under: “After marriage, accused Raj Kumar has started harassing and beating her. I and other mohalla people had tried to make him (accused Raj Kumar) understand to not to give beatings to Seema. But, he continued harassing and beating her and he did not change his behavior. Due to this behavior of accused Raj Kumar, she (Seema) came to her father‟s house i.e 158/3, Gali Sanatan Dharm Shala, Maujpur to live there, about two months prior to the incident. xxx On 15.08.2009, at about 05:45-06:00 PM, I was present in front of hotel namely „Apka Bhojnalaya‟, I saw that accused Raj Kumar was coming running from the side of house of Ram Chander and he was having knife in his hand and on seeing me he stopped there and told that „maine dono ko maar dia hai. Jo kara jaye kar lo.‟ I immediately went to the house of Ram Chander and found that Sh. Ram Chander and his daughter Seema were lying in the room in blood of pool (khoon se latpat the).”
26. PW[1] Ashok Kumar in his cross-examination stated as under: “The rented house of deceased Ram Chander was at the distance about 20-25 steps away from my house. The house of the deceased Ram Chander was after leaving 2- 3 street from my house. xxx I used to treat Seema as my daughter. xxx It is further wrong to suggest that accused Raj Kumar was also having good relation with the deceased Ram Chander. It is further wrong to suggest that there was visiting terms in between the family of the accused Raj kumar and deceased Ram Chander. xxx I came at the apna bhojnalaya at about 05:00 PM. Apna bhojnalaya is of my bhabhi (sister-in-law).”
27. The legal position pertaining to appreciation of circumstantial evidence of 'last seen' has been summarised in a Division Bench decision titled as Arvind @ Chhotu vs. State, ILR (2009) Supp. (Del) 704, in the following words: “(i) Last-seen is a specie of circumstantial evidence and the principles of law applicable to circumstantial evidence are fully applicable while deciding the guilt or otherwise of an accused where the last seen theory has to be applied.
(ii) It is not necessary that in each and every case corroboration by further evidence is required.
(iii) The single circumstance of last-seen, if of a kind, where a rational mind is persuaded to reach an irresistible conclusion that either the accused should explain, how and in what circumstances the deceased suffered death, it would be permissible to sustain a conviction on the solitary circumstance of last seen.
(iv) Proximity of time between the deceased being last seen in the company of the accused and the death of the deceased is important and if the time gap is so small that the possibility of a third person being the offender is reasonably ruled out, on the solitary circumstance of lastseen, a conviction can be sustained.
(v) Proximity of place i.e. the place where the deceased and the accused were last seen alive with the place where the dead body of the deceased was found is an important circumstance and even where the proximity of time of the deceased being last seen with the accused and the dead body being found is broken, depending upon the attendant circumstances, it would be permissible to sustain a conviction on said evidence.
(vi) Circumstances relating to the time and the place have to be kept in mind and play a very important role in evaluation of the weightage to be given to the circumstance of proximity of time and proximity of place while applying the last-seen theory.
(vii) The relationship of the accused and the deceased, the place where they were last seen together and the time when they were last seen together are also important circumstances to be kept in mind while applying the last seen theory. For example, the relationship is that of husband and wife and the place of the crime is the matrimonial house and the time the husband and wife were last seen was the early hours of the night would require said three factors to be kept in mind while applying the last-seen theory.”
28. In State of U.P. vs. Satish reported in AIR 2005 SC 1000, the Hon‟ble Supreme Court held as under: “The last seen theory comes into play where the timegap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case, there is positive evidence that the deceased and the accused were seen together by witnesses-PW[3] and PW[5], in addition to the evidence of PW2”
29. It is in evidence that PW[1] was in fact the first person who was found on the spot at the time when the police visited the spot and noticed the dead bodies which is evident from the version of the Investigating Officer SI Shishu Pal (PW27) who had categorically deposed that at the spot public persons gathered and one Ashok Kumar had met him and his statement Ex.PW1/A was recorded. PW[1] has categorically deposed in his testimony that he raised an alarm after he saw the dead bodies of the deceased persons lying in a pool of blood. PW[1] also withstood the test of cross-examination which makes his testimony credible and trustworthy. It is further in evidence that PW[2] Smt. Daya Rani is also a witness to the last seen. Furthermore, it would be relevant to point out that there was no reason as to why PW[1] and PW[2] would have deposed against him; there is no enmity or any other ulterior motive imputed to him. After reading the above discussed testimonies and in view of the aforesaid principles governing the case it stands established that the deceased was last seen alive in the company of the appellant. This unhesitatingly points the finger of guilt towards the appellant. In our view, the prosecution was able to establish the 'last seen' theory against the appellant.
30. So far as medical evidence is concerned, PW12 Dr. Meghali Kelker conducted the post-mortem examination of the deceased Ram Chander. As per the postmortem report Ex.PW12/A, the deceased had received the following anti mortem injuries: i) Incised stab wound measuring 2 x 0.[2] x 3.[5] cm present on antromedial aspect of left thigh. ii) Incised stab wound measuring 3 x 0.[2] x 5 cm deep present on right abdomen. iii) Incised stab wound measuring 2 x 0.[2] x 4 cm deep present horizontally on left lower chest. iv) Incised stab wound measuring 1.[5] x 0.[2] x 4 cm deep present on left lower abdomen obliquely placed. v) Incised stab wound measuring 2.[5] x 0.[2] x 16 cm present on left lower chest. vi) Incised stab wound measuring 3.[6] x 2.[2] x 8 cm deep present on right abdomen. vii) Incised stab wound measuring 3.[4] x 0.[2] x 6 cm deep present on right lower abdomen. viii) Superficial incised wound measuring 2 x 0.[2] cm present on the palmar aspect of base of left little finger obliquely placed and muscle deep. ix) Superficial incised wound measuring 9.[5] x 0.[3] cm muscle deep present on medial side of ventral aspect of left forearm. x) Reddish abrasion 4 x 0.[5] cm present on ventral aspect of left lower forearm 0.[5] cm above left wrist joint. xi) Incised stab wound measuring 2.[5] x 0.[2] x 7 cm deep, obliquely placed, present on back of left shoulder. On Internal Examination, it was found that the intestines contained fluid and injuries as described in Injury No. 2, 6 and 7. Cuts present in omentum as described in Injury No. 2, 3, 6 and 7. Cuts seen in mesentery as described in Injury No. 2. Extravasation of blood seen in soft tissues and muscles of abdominal wall.
31. PW12 Dr. Meghali Kelker, vide report EX.PW12/B, further opined that the cause of death was due to haemorrhagic shock as a result of ante mortem injury to mesenteric blood vessels produced by sharp edged weapon and injury No. 1 to 9 and 11 are caused by sharp edged weapon and injury No. 2, 3, 6 and 7 are sufficient to cause death in the ordinary course of nature independently as well as collectively. PW12 also gave subsequent opinion regarding weapon of offence and opined that injuries no.1 to 9 and 11 can be possible by the given weapon or this type of weapon and gave further opinion with respect to the coinciding cuts present on the body and clothes and opined that injury No. 2, 3, 4, 5, and 11 has corresponding cut marks on the shirt and banyan and injury No.1 has corresponding cut mark on the trouser, and injuries no. 6 and 7 have corresponding cut marks on the shirt and injuries No. 8, 9 and 10 do not have corresponding cut marks on the clothes and injury No.10 was caused by blunt force impact.
32. PW13 Dr. Atul Gupta conducted the post-mortem examination of the deceased Seema. As per the postmortem report Ex.PW13/A, the deceased had received the following anti mortem injuries: i) Wedge shaped incised stab wound 2.[7] x 0.15 cm obliquely placed on outer aspect of left upper arm. ii) Wedge shaped incised stab wound 3.[1] x 0.15 cm obliquely placed on upper outer aspect of chest on left side. iii) Wedge shaped incised stab wound 3.[2] x 0.[2] cm obliquely placed on upper outer aspect of left breast. Depth of the wound was 7 cm. iv) Wedge shaped incised stab wound 2.[5] x 0.[2] cm on back of trunk vertically placed on left side. Depth of the wound was 10.[5] cm. v) Incised stab wound 2.[9] x 0.[2] cm on back of trunk right side. Depth of the wound was 10.[5] cm. vi) Two incised wounds on sole of right foot communicating with each other cutting only the subcutaneous tissues placed 3.[5] cm apart. Medial incised wound was of size 4 x 0.15 cm. Lateral wound was of size 5 x 0.15 cm on lateral border of right foot.
33. PW13 Dr. Atul Gupta further opined that the cause of death was shock due to ante mortem injuries on chest organs produced by a sharp edged weapon and injuries no.2, 4, and 5 were sufficient in the ordinary course of nature to cause death.
34. As per the Forensic report Ex. PW18/A, the relevant observations are mentioned as under: DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel 9: One sealed cloth parcel sealed with the seal of “HR” containing exhibit 9. Exhibit 9: One pants described as pants of accused „Raj Kumar‟. Parcel 10: One sealed cloth parcel sealed with the seal of “HR” containing exhibit 10 kept in a polythene. Exhibit 10: One shirt described as shirt of accused „Raj Kumar‟. Parcel 11: One sealed cloth parcel sealed with the seal of “MK” containing exhibit 11. Exhibit 11: One knife having rusty stains.
RESULT OF ANALYSIS
1. Blood was detected on exhibit 9.
2. Blood could not be detected on exhibits 10 & 11.
35. After reading the FSL report Ex.PW-18/A, it is evident that Exhibit 9 is the pant worn by the appellant, Exhibit 10 is shirt of the appellant and Exhibit 11 is the alleged knife used in commission of crime. As per result, Exhibit 9 contains human blood of group 'A' and blood could not be detected on Exhibit 10 and 11 i.e. shirt and knife. However, blood could be detected on pant of the appellant having blood group 'A' and deceased Ram Chander was having blood group 'A'. As per Exhibit 12, the same is blood on gauge of the deceased Ram Chander.
36. In view of the above, it is to be seen whether the prosecution has succeeded in establishing the sequence of circumstances which can be called conclusive in nature and there is no unbroken chain leaving a gap of missing links and such circumstances are consistent with the hypothesis of the guilt of the appellant. As per the case set up by the prosecution, the circumstances which conclusively establishes the involvement of the appellant in the commission of the said murder mainly are as under: i) Deceased persons were last seen alive in the company of the appellant Raj Kumar as per the testimonies of PW[2] Smt. Daya Rani. ii) The appellant was seen running with the knife in his hand immediately after the incident by PW[1] before whom he stopped and said “maine dono ko maar dia hai. Jo kara jaye kar lo” iii) Medical evidence corroborating the number of injuries and subsequent opinion regarding the weapon of offence used in the commission of the offence. iv) Forensic report reveals that the blood group of the deceased was found on the pant worn by the appellant when he was arrested.
37. The next plea raised by the counsel for the appellant in his defence that on the fateful day the appellant had gone to some other place and he had cordial relation with the deceased. However, he has not led any evidence to substantiate the same. There is no doubt that the onus of proving the same is on the appellant. By virtue of Section 106 of the Evidence Act and having regard to the testimonies of PW[1] Ashok Kumar, PW[2] Smt. Daya Rani, the appellant ought to have explained the incriminating circumstances. The presumption under Section 106 of the Indian Evidence Act is explained in Hasmuddin vs State of Delhi (2008) ILR 2 Delhi 701, wherein it has been held by the Delhi High Court that:
38. Applying the above discussed principles of law, we agree with the observation made by the trial court that the deceased was last seen alive in the company of the appellant and since appellant did not lead any evidence in defence to prove alibi the appellant fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him and the Court can consider his failure to adduce any explanation, as an additional link which completes the chain.
39. After considering the entire evidence and re-appreciating the same in the light of arguments and the reasons given by the trial court, we are of the view that the last time when the deceased persons were seen alive and when the appellant was seen with the knife and when the dead bodies were seen, had occurred in so short duration that there is no possibility of any third person entering in the house and committing the offence. The chain of circumstances are so well interconnected and complete which rules out any possibility that there can be any other person other than appellant who had committed the murder. The circumstances from which an inference of guilt is drawn are cogently and firmly established and the circumstances have definite tendency unerringly pointing towards the guilt of the appellant; the circumstances, taken cumulatively, forms a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the appellant and none else.
40. In the light of the preceding discussion, we find no infirmity in the judgment passed by the trial court and we see no reason to interfere with the same. Accordingly, the conviction of the appellant under Section 302 of the Indian Penal Code and under Section 25/27 of the Arms Act is upheld.
41. The appeal therefore fails and is dismissed.
42. The copy of this order be sent to the Superintendent Jail.
43. The trial court record be sent back.
SANGITA DHINGRA SEHGAL, J. G. S. SISTANI, J. MAY 30, 2016 gr//