2025 INSC 499
SUPREME COURT OF INDIA
(HON’BLE SUDHANSHU DHULIA, J. AND
HON’BLE K. VINOD CHANDRAN, JJ.)
SUBHASH AGGARWAL
Appellant
VERSUS
STATE OF NCT OF
DELHI
Respondent
Criminal Appeal No._______of 2025
(@ Special Leave Petition (Crl.) No. 1069 of 2025)-Decided on 17-04-2025
Criminal,
Murder
Penal Code, 1860,
Section 302 – Arms Act, 1959, Section 25 and 27 – Murder – Circumstantial evidence – Motive – Appellant tried for murder of
his own son - Motive remains hidden in the inner recesses of the mind of the
perpetrator, which cannot, oftener than ever, be ferreted out by the
investigation agency - Though in a case of circumstantial evidence, the complete
absence of motive would weigh in favour of the accused, it cannot be declared
as a general proposition of universal application that, in the absence of
motive, the entire inculpatory circumstances should be ignored and the accused
acquitted - Accused and the deceased along with the wife of the accused and his
two other children were residing in the house which was the scene of occurrence
- The wife and two daughters were sleeping in another room, and they woke up
hearing the shouts of the accused, who first detected the body - They came out
and saw the youngest child lying in a pool of blood and one of the daughters
summoned the neighbours - The family members and the neighbour who were
examined before Court spoke of the accused having tried to convince them that
it was a suicide by a self-inflicted injury; found to be a deliberate falsehood
- The accused does not say what led him to the body at the dead of the night,
when all were asleep –
The accused admitted that he
owned the gun, but his explanation was that it was hidden by his children,
which is not plausible in the teeth of the corroborated deposition of PW-1, 3
& 4 that it was in the custody of the husband and that only he could use it
- The accused, admittedly a right-handed person, had gunshot residue particles
in his right hand - There were also gunshot residue particles around the
gunshot wound by reason of which the son succumbed - Though a definitive
opinion was not given by the doctor as to whether the wound was homicidal, no
question was put to the ballistic expert - In fact, the suggestion was that
since the gun did not have a butt, it could cause injury to the person
shooting, which was denied based on the tests carried out - The doctor deposed
that the wound was not from a contact range – Held that the circumstances
coupled with the falsity of the claim made by the accused immediately after the
detection of the body, to the onlookers and the false explanation given by the
accused in his statement under Section 313, regarding both his hands having
been forcefully smeared with gunshot residue provides further links in the
chain of circumstances which is complete and leads only to the hypothesis of
the guilt of the accused and not to any hypothesis of innocence -Find
absolutely no reason to interfere with the conviction and sentence of the
accused as handed down by the Trial Court and confirmed by the High Court.
(Para
24 to 27)
JUDGMENT
K. Vinod Chandran,
J. :- Leave
granted.
2. Filicide or suicide is the
vexing question in the above case where a father was tried and convicted under
Section 302 of the Indian Penal Code, 1860[‘the
I.P.C] read with Section 25/27 of the Arms Act, 1959. The Trial Court
sentenced the accused to imprisonment for life under Section 302 and rigorous
imprisonment respectively of one year and seven years for offences under
Sections 25 and 27 of the Arms Act, 1959
besides a fine of Rs. 1,000/- with default sentence, confirmed by the High
Court.
3. We heard Mr. Varun Dev Mishra,
learned counsel appearing for the appellant and Ms.Aakanksha Kaul, learned
counsel representing the State.
4. Learned counsel for the
appellant contended that the family of the accused had resorted to character
assassination of the accused before the police and the Court, which alone led
to the prosecution and the resultant conviction. There is no direct evidence, and
the circumstances attempted to be proved by the prosecution fails to find the
guilt, squarely on the accused. The deceased was the only son of the accused
and there was absolutely no motive not even alleged, to support the accusation
of murder. The wife of the accused examined as PW-3 stated in cross-examination
that the accused maintained very good relations with his son. PW-1, his
daughter, also said that just prior to the incident she saw the accused sleeping
peacefully in his room. There is no motive or even a proximate incident which
could lead to the accused killing his own son. Even his daughters who were
examined as PW-1 and PW-4 did not speak of any instance of harassment or
violence perpetrated by the accused on his son.
5. There was no definitive
opinion of the death being homicide and the clear indication is that it was a
suicide. The doctor, examined as PW-20, refused to give a definite opinion on
the death and even the ballistic expert was not able to come forth with a
definite opinion. In fact, the appellant is right-handed, and gunshot residue
was found only on the swab taken from his right hand; while the possibility of
such residue being present is more probable on the hand which holds the barrel,
that too more likely on the back of the hand and not on the palm. More
pertinently, though similar swabs were taken from the hands of the deceased,
there is no report or evidence regarding the analysis made. The appellant has
explained in his statement under Section 313 of the Code of Criminal Procedure,
1973['the Cr.P.C] that except his
wife all the other family members could handle and operate the gun, and it was
kept hidden by the children. The
learned counsel fervently argued for acquittal also on the plea taken that
there was no conceivable reason why he should kill his only son, who is the
youngest of his five children.
6. The learned counsel for the
State pointed out that there is clinching evidence against the accused. The
accused was the first person to detect the body, and he tried to convince the
family and the neighbours, who came to the scene of occurrence, that his son had
killed himself with a screwdriver. There was no blood stain on the screwdriver
and PW-11, the neighbour who was summoned to his house deposed that when he
accosted the accused with the fact of absence of blood on the screwdriver, the
accused had no explanation. Clearly the death was a homicide and there is no
plausible reason to find suicide as has been categorically deposed by the
ballistic expert, PW-10. Motive is not imperative, if there are very strong
circumstances pointing to the guilt of the accused and the evidence of the
family members clearly indicates the wayward ways of the accused and that he
did not maintain good relations with his wife and children.
7. On facts, the family of the
accused consisted of himself, his wife and five children: the deceased was the
youngest son. Two of his elder daughters were married and the accused was
staying along with his wife and three younger children in the house which was
the scene of occurrence. On the night of 14th/15th December 2012, the mother
and two daughters were sleeping in a room, the deceased son in an adjacent room
and the father in the drawing room. At about 12:45 am, the mother and daughters
woke up hearing the shouts of the father; that the brother is no more. The
mother and daughters in their deposition corroborated each other on the
narration of how they came out of the room and found the deceased in a pool of
blood. The mother who was examined as PW-3 and the sisters of the deceased who
were examined as PW1 and PW-4 spoke in tandem about the accused having
brandished a screwdriver, trying to convince them that the death was a suicide by
reason of a self-inflicted wound, with the screwdriver. PW-11, a nearby
resident, who was summoned by PW1, in his deposition corroborated the said
version. PW-11 also went on to say that he had confronted the accused on the
absence of blood stains on the screwdriver.
8. The cause of death is spoken
of by PW-20, the doctor and PW-10, the ballistic expert. A single firearm entry
wound was noticed as below: -
"Firearm
entry wound with irregular margin present from central line of chest 2cms
between 5 and 6th rib of left side of chest, sorrounding area of wound show
abrasion collar, blackening present and margin of wound is inverted wound is
round in shape and size of wound is 2 x2 cms. It is 14cms away from the left
nipple and 16 cms from the right nipple and 20 cms. away from centre of
clavical and 21 cms., away from umblicus and depth of the wound is about 15
cms. No other external injury were noted." [sic]
9. The death was deposed to be by
reason of hemorrhagic shock and huge blood loss consequent upon firearm injury
which was ante-mortem in nature, fresh in duration, caused by a bullet fired
from close range. The sole injury was sufficient to cause death in the ordinary
course of nature, as deposed by the doctor. The doctor also spoke of the
trajectory of the bullet inside the body, which was obliquely downwards from
the left side of chest, first puncturing the lung and then taking an oblique
turn to hit the heart. On cross examination, the doctor was queried on what was
meant by close range. The doctor distinguished close range and contact range to
depose that close range means below one meter, which excludes contact range;
the latter of which denotes that the weapon was in touch with the human body,
when it was fired. On the question whether it could be a self-inflicted injury,
the doctor did answer that it could only be spoken of by the ballistic expert.
10. The evidence of the doctor
must be considered in juxtaposition with the evidence of the ballistic expert
who was examined as PW-10; who was not questioned on the suicide angle as to
whether the injury could be self-inflicted, even when he was recalled under
Section 311, after the doctor's examination. PW-20 was also not the doctor who
conducted the post-mortem but spoke based on the report and his expertise.
PW-10 categorically deposed "On the basis of above observations, the range
of firing with reference to hole H1 on the shirt marked Ex.C1 and double barrel
breech loading gun was within 3 feet (approximately) distance from the muzzle
end of the barrel of double barrel breech loading gun." [sic]. In cross
examination PW-10 had also deposed that during test fire conducted by him with
the weapon of offence, it did not exhibit any performance resulting in an
injury to the person who fired it. The Counsel for the accused never questioned
PW10 as to the theory of suicide, even after the doctor deposed that the
ballistic expert only could speak on that. When the witness was recalled, there
was only a casual query whether the police had enquired with him as to the
wound being self-inflicted or caused by someone else, without being followed
up. The evidence of the ballistic expert coupled with that of the doctor clearly
indicates that the death was caused due to a gunshot injury sustained by the
deceased and that it could not have been a self-inflicted injury.
11. The accused argues that the
gunshot residue would normally be on the arm holding up the barrel and not the
firing arm. The deposition of PW-10 indicates that parcel no. 8 contained the
swab used to hand wash the right hand of the accused marked as RHS-1 and parcel
no. 9 contained the swab from the left hand of the accused marked as LHS-1. The
swab taken from around the hole of the entry wound marked as H-1 and H-2 showed
gunshot residue particles both on the shirt and the banyan, respectively
numbered as H-1 and H-2; worn by the deceased at the time of his sustaining the
wound. Characteristic gunshot residue particles were detected in swab RHS-1
relating to the right hand.
12. That the accused was
right-handed was elicited from PW-1, the daughter, in her cross examination. It
also must be emphasized that the accused does not have a case that he handled
the weapon after the body was found. This clinches the culpability of the
accused insofar as the gunshot residue particles having been found in the right
hand of the accused. His explanation in the Section 313 statement, is also that
he was tortured at the police station, made to sign on blank papers and the
police officers inserted a cotton into the barrel of the gun and forcefully
rubbed it on his hands. PW-1, 3 & 4 and PW-11 spoke of the accused having
tried to convince them that the deceased killed himself with a screwdriver and
brandished one, to fortify the contention. There were no blood stains seen on
the screwdriver and the injury clearly is a gunshot injury and not one caused
by a screwdriver. The falsity of the assertion of suicide with a screwdriver,
at the scene of occurrence, coupled with the falsity of the claim of forceful
rubbing of a cotton with a gunshot residue particle on his hands; since then,
gun-shot residue would have been detected on both hands of the accused, is
another circumstance against the accused.
13. Another plea taken by the
learned counsel was that the best evidence of gunshot residue in the hands of
the deceased was suppressed. True, the IO spoke of the doctor who conducted the
post-mortem having taken swabs from the hands of the deceased; the result of
analysis of which has not been placed before Court. We cannot but observe that even
if gunshot residue was found in the hands of the deceased that would not lead
to a definite conclusion of a self-inflicted injury, since the shot fired was
in close range, as deposed by PW-20, which could even otherwise have left
gunshot residue on the hands of the injured who was shot. Medical
Jurisprudence'by Dr. R.M. Jhala and Sh. V.B. Raju, Retired Judge, speaks of the
"Nature of injuries whether suicidal, homicidal or accidental" in the
following manner:
"The
most important and interesting point from legal point of view in the fire-arm
injuries is the nature. It is always necessary to decide the question of the
suicidal, homicidal or accidental nature of the injury. However, it should be
realized and appreciated that the question cannot be answered correctly and
confidently. A useful policy, from point of view of investigation would be to
consider every fire-arm injury as homicidal unless proved otherwise. As with
other types, of injuries, accessibility is the main factor. Certain situations
are very often preferred in case of suicide. About 80% of the wounds are in the
region of temple. It is peculiar that heart is rarely the site for suicide,
while chest is often the choice of homicidal fire-arm injury. Cadaveric spasm
when present with revolver grasped firmly in hand is a very important
confirmatory sign pointing to suicidal nature. The other important sign helping
in determining the nature is the distance from which the weapon is alleged to
be fired. As discussed in the earlier pages, the distance can be assessed from
the type of the injury, powder marks, marks of explosion and burning. These
prove useful in arriving at an authentic opinion as to the alleged weapon as
well as the way in which it could be caused. In suicidal cases generally signs
of firing from close vicinity and in accessible areas are present."
(underlining
by us for emphasis)
The gun in the present case was
not in the grip of the deceased and the wound was on the chest and not on the
temple.
14. Taylor's; 'Principles and
Practice of Medical Jurisprudence', in Chapter XI deals with 'Firearm
Injuries'. Under the heading "Evidence of the proximity of the weapon when
fired', it is stated that: 'Self-inflicted firearm wounds are usually contact
wounds. Accidents may occur when a person is cleaning a gun or pistol with the
muzzle pointed towards him, and then the wound is situated in front, close but
not in contact."[sic-page 303]. It has also been stated that "If a
near wound be inflicted by a second person it maybe impossible, in the absence
of evidence, to say whether it was accidental or homicidal. It is very
necessary to compare the particulars of the wound very carefully with the
statements made by the person implicated. They must be consistent"
(sic-page-304). In the present case, it has been deposed by the doctor that the
injury was inflicted at close range, as distinguished from contact range.
Though the doctor had specifically spoken of a definite opinion being possible
only by the ballistic expert; no such question was put to PW-10, even when he
was recalled after the evidence of PW-20. In the wake of the above, it is our
duty to examine the conduct of the person implicated, the accused, and the
attendant circumstances, to understand whether they are consistent with the
case set up of a self-inflicted injury.
15. At the risk of repetition, it
must be stated, as already found by us that the accused had a case that the
deceased died by a self-inflicted injury with a screwdriver and he does not
have any explanation as to how he detected the body in the night when everybody
was asleep. What assumes significance is also the aspect of gunshot residue
detected on the right hand of the accused. The appellant has a contention that
gunshot residue would be normally seen on the left hand which holds up the
barrel, which remains a mere conjecture without any substantiation, not even
from the ballistic expert. No questions were asked to the ballistic expert,
confronting him with the weapon as to whether it could have been fired with one
hand, without holding up the barrel. Here we must notice that PW4, one of the
police officers who reached the crime scene first, deposed, on identifying the
gun as Ext. P1, that it was a small double barrel gun. PW10 the ballistic
expert also deposed that the weapon was a double-barreled gun, without butt and
a shortened barrel. PW14, the Investigating Officer spoke of the gun as a small
one without a handgrip; thus, capable of being fired with one hand. The gunshot
residue found on the right hand of the accused also has not been explained
properly by him and the version in the Section 313 statement has been found to
be a deliberate falsehood. The statement made by the accused and the
explanation proffered are not consistent with the theory of self-inflicted
injury. The decision in Machindra v. Sajjan Gal fa Rankhamb & Ors. [(2017) 3 SCR 36] is not relevant. We
also must presume; in accepting the contention, without any substantiation,
that a right-handed man would only shoot with that hand.
16. In C.T. Ponnappa v. State of
Karnataka[(2004) 11SCC 391], the gun
belonging to the father was recovered from the joint family house and the
ballistic expert report also indicated that the shot was fired by the said gun.
Since there was nothing to show that the owner of the gun handed it over to the
accused, the mere fact of the shot having been made from the gun was not
sufficient to implicate the appellant, was the finding. In the present case, the gun was owned by the father and
his only explanation is that the gun was hidden by the children. No such suggestion
was made to PW-1, 3 & 4. The accused towards the end of his Section 313
questioning also stated that the gun was in the house accessible to all and
that the licence was misplaced: quite contrary to his earlier statement.
17. One other compelling
contention taken by the accused is that there was no motive ascribed to the
accused to kill his son, who was the only boy child of his five children. We
cannot accept the fervent plea, as to the impossibility of the father killing
the only boy child, which argument we reject at the outset as puerile. The
thrust of the argument was on no motive existing for the alleged crime;
especially when the accusation was that the father killed the son. There was
neither a long-standing animosity between the father and son nor was there any
immediate proximate incident which could lead to any inference of any motive is
the argument, relying on precedents.
18. Nandu Singh v. State of
Chhattisgarh[2022 SCC OnLine SC 1454] ,
was a case in which the deceased was found missing and later his body
recovered. One of the witnesses deposed that the deceased was seen going out
with the accused from a hotel which was the sole circumstance connecting the
accused with the deceased which according to the learned Judges could not even be
brought under the theory of last seen together, since there was nothing to
indicate that they were seen together proximate to the crime. The total absence
of motive also weighed with the Court in acquitting the accused.
19. Reliance was placed on State
of U.P. v. Kishanpal[(2008) 16 SCC 73]
wherein it was held that motive is something which is primarily known to the
accused themselves and it is not possible for the prosecution to always explain
what prompted or excited them to commit a particular crime. Motive is a very
important link in the circumstances which could prove the guilt of the accused,
and it loses its importance only when there is direct evidence of eyewitnesses,
which is convincing and conclusive as to the
guilt of the accused. However, it was also noticed that even if there may
be a very strong motive for the accused to commit a particular crime, it does
not lead to a conviction by itself, if the eyewitnesses are not convincing or
the chain of circumstances is not complete.
20. The declaration in the cited
decisions and the decisions relied on therein, is to the effect that if the
case is built solely upon circumstantial evidence, absence of motive will be a
factor that weighs in favour of the accused. Just as a strong motive does not
by itself result in a conviction, the absence of motive on that sole ground
cannot result in an acquittal. When the eyewitnesses are not convincing, a
strong motive cannot by itself result in conviction, likewise when the
circumstances are very convincing and provide an unbroken chain leading only to
the conclusion of guilt of the accused and not to any other hypothesis; the
total absence of a motive will be of no consequence.
21. We extract paragraph 17 from
a three-judge bench decision, Jan Mohammad v. State of Bihar[(1953)1 SCC 5]; which also is of
vintage flavour, succinctly putting forth the proposition:
"Motive
is a relevant fact under the Evidence Act (Section 8). It is an important
element in a chain of presumptive proof where the evidence is purely circumstantial,
but it may lose importance in a case where there is direct evidence by
witnesses implicating the accused. In a case such as the present where the
prosecution evidence itself shows that the relations between the deceased and
the appellants were cordial, the absence of an apparent motive, though not
necessarily fatal to the prosecution case, may reasonable be regarded as a fact
in favour of the accused. We think, therefore, that the attempt to prove a
motive against any of the appellants has failed." [sic]
22. Suresh Chandra Bahri v. State
of Bihar[1995Supp (1)SCC 80] held
that in a case based on circumstantial evidence, proof of motive would 'supply
a link in the chain of circumstances' but all the same, absence of motive cannot be a ground to altogether
reject the prosecution case. Para 21 reads as follows:
"21.
At the very outset we may mention that sometimes motive plays an important role
and becomes a compelling force to commit a crime and therefore motive behind
the crime is a relevant factor for which evidence maybe adduced. A motive is
something which prompts a person to form an opinion or intention to do certain
illegal act or even a legal act but with illegal means with a view to achieve
that intention. In a case where there is clear proof of motive for the
commission of the crime it affords added support to the finding of the court
that the accused was guilty of the offence charged with. But it has to be
remembered that the absence of proof of motive does not render the evidence
bearing on the guilt of the accused nonetheless untrustworthy or unreliable
because most often it is only the perpetrator of the crime alone who knows as
to what circumstances prompted him to a certain course of action leading to the
commission of the crime....."
(underlining
by us for emphasis)
23. Sukhpal Singh v. State of
Punjab[(2019) 15 SCC 622] found that
if prosecution establishes motive, it will undoubtedly strengthen the
prosecution case, but to say that absence of motive will be fatal to the
prosecution, irrespective of other material before the court in the form of
circumstantial evidence is far-fetched. Para 15 reads as follows:
"15.
The last submission which are called upon to deal with is that there is no
motive established against the appellant for committing murder. It is
undoubtedly true that the question of motive may assume significance in a
prosecution case based on circumstantial evidence. But the question is whether
in a case of circumstantial evidence inability on the part of the prosecution
to establish a motive is fatal to the prosecution case, we would think that
while it is true that if the prosecution establishes a motive for the accused
to commit a crime it will undoubtedly strengthen the prosecution version based
on circumstantial evidence, but that is far cry from saying that the absence of
a motive for the commission of the crime by the accused will irrespective of
other material available before the court by way of circumstantial evidence be
fatal to the prosecution. In such circumstances, on account of the
circumstances which stand established by evidence as discussed above, we find
no merit in the appeal and same shall stand dismissed.
(underlining
by us for emphasis)
24. Motive remains hidden in the
inner recesses of the mind of the perpetrator, which cannot, oftener than ever,
be ferreted out by the investigation agency. Though in a case of circumstantial
evidence, the complete absence of motive would weigh in favour of the accused,
it cannot be declared as a general proposition of universal application that,
in the absence of motive, the entire inculpatory circumstances should be
ignored and the accused acquitted.
25. The other decisions relied on
by the accused/ appellant are all with respect to the missing link and
presumption of innocence unless proved guilty, and we need only refer to the
celebrated judgment in Sharad Birdhichand Sarda v. State of Maharashtra[(1984) 4 SCC 116]. In the present case,
the accused and the deceased along with the wife of the accused and his two
other children were residing in the house which was the scene of occurrence.
The wife and two daughters were sleeping in another room, and they woke up
hearing the shouts of the accused, who first detected the body. They came out
and saw the youngest child lying in a pool of blood and one of the daughters
summoned the neighbours. The family members and the neighbour who were examined
before Court spoke of the accused having tried to convince them that it was a
suicide by a self-inflicted injury; found to be a deliberate falsehood. The
accused does not say what led him to the body at the dead of the night, when
all were asleep. The accused admitted that he owned the gun, but his explanation
was that it was hidden by his children, which is not plausible in the teeth of
the corroborated deposition of PW-1, 3 & 4 that it was in the custody of
the husband and that only he could use it.
26. The accused, admittedly a
right-handed person, had gunshot residue particles in his right hand. There
were also gunshot residue particles around the gunshot wound by reason of which
the son succumbed. Though a definitive opinion was not given by the doctor as
to whether the wound was homicidal, no question was put to the ballistic
expert. In fact, the suggestion was that since the gun did not have a butt, it
could cause injury to the person shooting, which was denied based on the tests
carried out. The doctor deposed that the wound was not from a contact range.
The circumstances coupled with the falsity of the claim made by the accused
immediately after the detection of the body, to the onlookers and the false
explanation given by the accused in his statement under Section 313, regarding
both his hands having been forcefully smeared with gunshot residue provides
further links in the chain of circumstances which is complete and leads only to
the hypothesis of the guilt of the accused and not to any hypothesis of
innocence.
27. We find absolutely no reason
to interfere with the conviction and sentence of the accused as handed down by
the Trial Court and confirmed by the High Court.
28. The appeal stands dismissed.
29. Pending applications, if any,
shall also stand disposed of.
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