Delhi High Court

Delhi High Court: In a case wherein a man challenged the decision of the Trial Court whereby he was convicted for murder of his wife (deceased) and for assaulting his daughter (victim) and he also challenged the order of sentence whereby he was directed to undergo life imprisonment along with fine of Rs. 5,000, the Division Bench of Mukta Gupta* and Poonam A. Bamba, JJ. dismissed the present appeal upholding the Trial Court’s decision and further held that the accused-appellant had not been able to render a plausible explanation as to the homicidal death of the deceased and rather took a false plea that thieves entered his house who allegedly committed the offence.


In the present case, the accused, deceased and the victim celebrated the marriage anniversary of the accused and deceased after which, all of them went to sleep. After some time, the victim heard the accused and the deceased fighting and thereafter, saw her father/accused stabbing her mother/deceased with a knife. The deceased asked the victim to run away and thereafter, the victim ran downstairs where she met one neighbour and the chowkidar. The accused came after the victim and while beating, took her away. Thereafter, information was received by the police pursuant to which they reached the spot and found blood and currency notes scattered in the room. The deceased was shifted to the hospital where she was declared “brought dead”. An FIR was registered under Sections 302 and 307 of the Penal Code, 1860 against the accused.

Analysis, Law, and Decision

The Court noted that the case of the prosecution was based both on the eye-witness testimony as well as circumstantial evidence, however, during trial, the victim, who was the injured eyewitness and daughter of the accused and the deceased, did not support the case of the prosecution rather supported the case of the defence by saying that “when she heard the shrieks of her mother, she woke up and found her mother lying in a pool of blood. She saw two thieves hidden behind the almirah and her father was trying to stop the blood coming out of the body of her mother when the thieves ran away”.

The Court opined that “tutoring of victim before her examination could not be ruled out as she admitted in her deposition before the Court that she was staying with paternal uncle of the appellant and that her real paternal grandfather also used to visit her often and they showered affection on her”. The Court held that “the Trial Court committed an illegality in relying upon the statement of the victim recorded under Section 164 CrPC as an admissible piece of evidence. It was settled that the statement recorded under Section 164 CrPC was not substantive evidence except if it came under Section 32 of the Evidence Act, 1872. Further, like any other previous statement it could only be used for the purpose of contradicting or corroborating the witness in terms of Sections 155 and 157 of the Evidence Act, 1872.

The Court relied on Somasundram v. State, (2020) 7 SCC 722, wherein the Supreme Court held that “a statement of a witness recorded under Section 164 CrPC, could not be used as substantive evidence and could be used only for the purpose of contradicting or corroborating him”. The Court observed that without the eyewitness account, the prosecution was left with circumstantial evidence to prove the accused’s guilt.

The Court noted that the case of the prosecution, which was not disputed, was that “at night, the appellant along with his wife (deceased) and daughter was present in the home”. It was further noted that though the defence of the accused was that the thieves came, and they injured the deceased, however, the Court opined that from the crime team report, it was evident that there were no signs of forced entry. The Court further opined that “the presence of the appellant at the time of alleged incident in the house also stood proved by the testimony of the hostile witness PW-3 (the victim) who stated that the appellant was present and when he was attending her mother, the thieves ran away”. Thus, there was no dispute about the presence of the appellant, the deceased and their daughter (victim) in the house at the relevant time.

The Court noted that even though the accused had two mobile phones, he did not make the PCR call immediately nor called the neighbours on phone but went outside his house, knocked at the door of the neighbour, and then asked him to make a PCR call. Thus, the Court opined that this conduct of the accused was highly unnatural, particularly when his wife was injured, he was injured, and his daughter was also injured. The Court also noted that the post-mortem report of the deceased demonstrated that before injuries were inflicted by the knife on the neck, an attempt was made to strangulate the deceased, however, as she did not die due to the strangulation, repeated blows were inflicted at and around the neck area of the deceased. For this, the Court relied on the testimony of the two eyewitnesses, a neighbour and a chowkidar. The neighbour stated that on the night of the incident she heard the noise of a child weeping, and she woke up and went outside her house. She saw the victim weeping. Thereafter, the victim went inside the house and after around 2½ hours she heard the noise coming from the street. Thus, the Court opined that it was evident that the incident took some time as the child came out weeping and then went inside after some time and only after a lapse of sometime, thereafter, the incident took place whereafter the chowkidar heard the noise.

The Court further opined that this time gap in the quarrel was also evident from the testimony of the chowkidar who stated that about 2.30 AM, he heard the noise of a child weeping from the first floor and as he could not ascertain who was weeping, he went away and when he came back for the next round after half an hour to the spot, he found neighbours and police officials gathered. The Court thus opined that “it was clear that there was a quarrel between the appellant and the deceased when he tried to strangulate the deceased and on being unsuccessful, he stabbed her. Since the quarrel took some time, the victim went outside weeping and again came back inside and after some time the incident took place, therefore, it could not be said that the stab injuries were inflicted by the two thieves”. The Court noted that on the locket of the victim, blood of both the deceased and the accused was found which showed that after the assault, the accused also touched the victim resulting in the availability of the blood of the accused as well as the deceased on her locket.

Thus, the Court held that in view of the evidence it was apparent that the accused had not been able to render a plausible explanation as to the homicidal death of the deceased and rather took a false plea that thieves entered his house who allegedly committed the offence. The accused did not get discharged with the false and frivolous explanation, rather the false and frivolous explanation could be treated as an additional link in the chain of circumstances. The Court further held that the prosecution had been able to complete the chain of circumstances and no ground for accused’s acquittal was made out. Thus, the Court dismissed the appeal.

[Hari Om v. State (NCT of Delhi), 2023 SCC OnLine Del 1701, decided on 20-3-2023]

Advocates who appeared in this case:

For the Appellant/Accused: Advocate Kanhaiya Singhal;

Advocate Priyal Garg;

For the Respondent: APP Laksh Khanna.

*Judgment authored by: Justice Mukta Gupta.

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