Judgment · Supreme Court

The Trial Court, therefore, convicted the appellant of theoffences under Sections 302 and 201 IPC and awarded the punishmentsaccordingly.3.3. In appeal, it was essentially contended on behalf of theappellant that there were missing links in the chain of events, particularly1‘IPC’, for short.PREM SINGH v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH810SUPREME COURT REPORTS[2023] 5 S.C.R.when the allegations of the appellant doubting the chastity of his wifewere not proved and hence, there was no reason for which the appellantwould have killed his own sons. Per contra, it was submitted on behalfof the respondent-State that the children were lastly seen in the companyof the appellant and it was clearly established that they died due to manualstrangulation and not on account of drowning, as falsely suggested bythe appellant, who otherwise failed to discharge the burden, in terms of Section 106 of Indian Evidence Act, 18722, of explaining thecircumstances leading to the death of the children by strangulation. TheHigh Court again minutely analysed the evidence on record and, whilerejecting the contentions urged on behalf of the appellant, dismissed theappeal and affirmed the findings and conclusions of the Trial Court.3.

The facts regarding treatment of theappellant for mental illness post-conviction have also been referred to inthis regard. On the other hand, it has been contended on behalf of therespondent-State that when the deceased were lastly seen in the companyof the appellant, the burden was heavy upon him to explain the cause oftheir unnatural death, which he had failed to discharge; rather he gavefalse information about accidental drowning of the children. It has alsobeen submitted that the plea of unsoundness of mind, as taken beforethis Court, remains untenable for the same having not been raised intrialor even in appeal before the High Court. It is submitted that even ifthe appellant had been admitted to and treated in the psychiatry wardafter conviction, it would not take his case of such unsoundness of mind2 Hereinafter also referred to as ‘the Evidence Act’.3 ‘CrPC’, for short. ABCDEFGH811at the time of commission of the crime that he could be absolved orexonerated.

Relevant factual and background aspects4. With reference to the outline as above and looking to thequestions arising for determination in this appeal, the relevant factualand background aspects could be noticed, in brief, as follows:4.1. The prosecution case, based on circumstantial evidence, hadbeen that the appellant took his two sons Jitesh and Sunny, aged about 9years and 6 years respectively, to Haiderpur Canal at Haiderpur WaterPlant, Paschim Vihar, Delhi under the pretext of having fun and afterreaching the said place and getting opportunity, he strangulated themone by one and threw the dead bodies into the canal. The prosecutioncase further had been that the appellant attempted to project as if thechildren accidentally fell into the canal and in that effort, he jumped intothe canal and, after swimming for some distance, came out and then, went to the nearby office of Water Treatment Plant to inform the staffpresent there about his sons having accidentally fallen into the canal; and thereafter, he also went to a nearby Petrol Pump and narrated thesame story to one of the employees and made a call at 100 number tothe police.

According to the prosecution, after reaching of the police, theappellant narrated the same version.4.2. However, after recovery of the dead bodies and their post-mortem examination, it was revealed that the children did not die becauseof drowning but the cause of death had been asphyxia as a result ofmanual strangulation. In the given circumstances, suspicion turnedtowards the appellant, for he was the person lastly in the company of thedeceased children. It was alleged that during interrogation, the appellantconfessed to the crime while stating that he doubted the chastity of hiswife and suspected that the children were not his sons.4.3. After conducting investigation in the First Information Report4registered in this matter bearing No. 253 of 2009, Police Station PrashantVihar, charge-sheet was filed against the appellant for the offencespunishable under Sections 302 and 201 IPC. After the case wascommitted to the Court of Sessions and the necessary charges wereframed, the appellant pleaded not guilty and claimed trial.4‘FIR’, for short.PREM SINGH v.

STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH812SUPREME COURT REPORTS[2023] 5 S.C.R.Prosecution Evidence5. In trial, the prosecution examined as many as 18 witnesses. 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, andPW-8 Rajender Yadav, another uncle of the wife of the appellant, attemptedto suggest that the appellant was a drunkard who used to give beating tohis wife and suspected her character but, PW-5 Bishan Singh, brotherof appellant, as also PW-9 Sunita Yadav, wife of the appellant, did notsupport this version. On the contrary, wife of the appellant specificallymaintained that she had always been having good and cordial relationswith her husband. Another set of evidence in this case had been in relationto the addiction of the appellant to alcohol and his admission to, anddischarge from, rehabilitation centre.

In this regard, the testimonies ofPW-2 Puran Singh, cousin of the appellant, and of PW-3 Jagbir, managerof rehabilitation centreassume relevance in view of emphasis laid in thisappeal on mental disposition of the appellant. Yet another set of evidencehad been of three witnesses, PW-1 Naresh Kaushik, delivery boy at the Petrol Pump, PW-4 Mahesh Kumar Sharma and PW-6 Komal Ram, thepersonnel in-charge at the Water Treatment Plant, who testified to thefacts about the appellant visiting them immediately after the incidentwhile suggesting that his sons had accidentally fallen into the canal. PW-14 Dr. V.K. Jha had been the medical officer who conducted post-mortemover the dead bodies and maintained his opinion that the cause of deathin relation to each of the children was asphyxia as a result of manualstrangulation. The other witnesses had been the personnel who conductedthe investigation or carried out the tasks related thereto.6.

Though elaboration on the entire prosecution evidence is notnecessary for the purpose of thepresent appeal but, having regard to thecontentions urged, we may take note of the relevant depositionsconcerning material factors namely, the appellant’s addiction to alcoholand his admission to, and discharge from, the rehabilitation centre; theappellant’s conduct towards his wife; the appellant’s version immediatelyafter the event leading to the demise of his two sons; and the medicalopinion after post-mortem of the dead bodies of the victim children.6.1. As regards addiction of the appellant and the matters relatedwith his admission to, and discharge from, the rehabilitation centre, therelevant part of the testimonies of PW-2 Puran Singh, cousin of the ABCDEFGH813appellant and PW-3 Jagbir, the manager of rehabilitation centrewouldread as under5: -“PW 2 Sh. Puran Singh Yadav S/o Sh. Bharat Singh Yadav, agedabout 63 years, R/o DU 72 Vishakha Enclave, Pitampura Delhi.

On S.A.…..About 15/20 days prior to the present incident I came to knowthat Prem Sing is admitted at Chetna Deaddiction Centre in Auchandi Village due to his habit of consume liquor. I visited thesaid deaddiction centre and found him admitted over there. I triedto contact the doctor over there but the officials of said centreinformed me that the doctor will come on Wednesday but onwednesday the said doctor did not arrive and they informed meon telephonethat doctor will come on Friday. When I made atelephonic call at the said deaddiction centre on friday then I cameto know that my uncle had got accused Prem Singh dischargedfrom the said centre. I raised an objection to the officials of saiddeaddiction centre as to why they had discharged Prem Singh ashis condition was not normal. After 2 or 3 days of his discharge the present incident tookplace as far as I remember it was Sunday night. Had Prem Singhnot been discharged from the said deaddiction centre the presentincident could have been avoided.

At this stage Ld. APP seeks permission to put some leadingquestion to the witness. Heard. Allowed.Q I put it to you that Prem Singh used to quarrel with his wifeSunita and used to regularly beat and abuse his wife Sunita andhis both the deceased sons. Prem Singh is a man of violent nature?A. I am unaware about the said facts as I was not a regularvisiter in the house of Prem Singh. I never stated so in my statementrecorded by the police and the IO had mentioned the said facts inmy statement on his own.xxxxx by Ms. Sadhna Bhatia, Amicus Curie Ld. Counsel forthe accused.5 Most of the extractions herein are verbatim from the copies placed on the record ofthis appeal.PREM SINGH v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH814SUPREME COURT REPORTS[2023] 5 S.C.R.IO never recorded my statement. IO never made any inquiryfrom me regarding this case. What ever I have deposed beforethe court today is true.

I had never seen accused beating his wifeor abusing his children as I reside separatly from their family anddo not interfere in their house. It is wrong to suggest that I amdeposing falsely.”*********“PW3 Statement of Sh. Jagbir S/o Sh. Sukhbir Singh, aged 40years, R/o H. No. 205, village – Auchandi, Delhi – 39. On S.A.I am working as manager of Chetna Foundation (Regd.) DrughDe-addiction and Rehabilitation Centre, Village Auchandi, Delhi-39 for last five years. In our said centre accused Prem Singh present in the courttoday (correctly identified) was admitted on 20.11.08 for de-addiction of his habit of consuming ahlcohol. He was got admittedby his father Girdhari Singh and his wife Sunita. He remainedadmitted at our said centre till 29.04.09. During the said period hiscounseling was done and after that he used to behave like anordinary prudent man. During his said stay of about of 5 monthsat our centre he never went to his home.

His wife Sunita, SisterBaladevi, father Girdhari Lal and Cousin Puran Singh came atour centre to meet him. He used to talk telephonically with hiswife Sunita, father Girdhari and other persons from the telephoneno. installed at our centre i.e, 27742360 and 27741540. Thebehaviour of the Prem Singh was normal during his said stay andhe was never given any medicine for mental illness because neitherany mental illness was observed in him nor his family membersgave us any previous history of his suffering from any mentalillness. He was only having addiction to liquor as told to us by hisfamily members.…..…….……….On 29.04.2009 Girdhari Singh along with one other person gotPrem Singh discharge from our centre against our advice as I hadadvised him to complete the course of 7-9 months. IO recordedmy statement. Documents which I had handed over to the IO i.e., ABCDEFGH815certificate is Ex. PW3/B and the photocopy of his complete fileof 8 pages is collectively Ex.

PW 3/C all the documents signed byme at point A. Original documents produced by the witness seenand returned.xxxxx by Ms. Sadhna Bhatia, Amicus Curie, Ld. Counsel for theaccused. Accused was mentally fit and sound during his stay at ourcentre and he was admitted only for de-addiction of his habit ofconsuming liquor.” 6.2. As noticed, PW-7 Mahender Kumar Yadav and PW-8Rajender Yadav, both uncles of the wife of the appellant, asserted thatthe appellant was not having good relations with his wife, was taken tothe habit of consuming liquor excessively, and was suspecting thecharacter of his wife. However, PW-5 Bishan Singh, brother of theappellant and PW-9 Sunita Yadav, wife of the appellant did not supportthe version of PW-7 and PW-8. We may take note of the relevant partsof the statements of PW-7, PW-8, PW-5 and PW-9, in that order, asunder: -“PW7- Statement of Mahender Kumar Yadav, Aged-52 years S/O Late Sh.

Ram Kishan Yadav R/O WZ-350 Village Shakurpur Delhi. On S.A.My niece Sunita Yadav had been married to accused PremSingh in the year 1996 and after marriage she starts residing atH.NO-225 Haider Pur Delhi. Accused Prem Singh present in thecourt today used to comment on the chastity of my niece SunitaYadav. Accused used to taking liquor and giving beating to Sunita. Accused used to blame on my niece that she was not having goodcharacter. Two male issues were borned after the wed-lock. Shewas also told by his father in an effort to rectify accused PremSingh to join Nasha Mukti Kendr, Auchandi Gav. On advise ofher father accused was admitted to the above centre for histreatment by my niece but on 29.04.2004 accused’s father hasrelieved his son from the Nasha Mukti Kendr Centre. Regarding both the issue accused Prem Singh used tocomment that they were not belongs to me and used to quarreledwith my niece and stated that they belongs to someone else.

OncePREM SINGH v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH816SUPREME COURT REPORTS[2023] 5 S.C.R.accused Prem Singh attempted to kill both the child by givingthem electric shock but with the pursuation of my niece and showingher humbleness she was able to save both the child. Thereafter, Sunita came to our house and remained in our house for about 5-6 months and thereafter Prem Singh has taken my daughter to hishouse. Accused Prem Singh after coming from the Nasha MuktiKendr remains quiet for 2-3 days but later on he continued hissame behavior i.e, blaming on my niece and talk vulger with her. He also stated that your calling some persons in your house andindulging in bad activities (galat kaam) like sexual assault. Healso used to quarrel with my daughter. On 03.05.2009 Sunita came to my house and stated thataccused Prem Singh quarreling with her. I went to his house andtried to consolidate their matter but could not succeed, ultimatelyI returned to my house.

On the same day at about 11:00 am Ireceived a phone call by the police that both the children of myniece Sunita were died by drowning in the canal near Haider PurWater treatment plant. I suspect that both the children have notbeen drowned as their own but they were killed by their fatheraccused Prem Singh……. At the time of recovery of the deadbody accused Prem Singh was claiming that both the childrenhave been drowned in the canal on their own but later on after hisarrest he admitted that he has committed murder of his both thechildren. Police recorded the disclosure statement of accused PremSingh in my presence same is EXPW-7/D signed by me at pt A.xxxxxx advocate by Ms. Sadhna Bhatia (Amicus Curie) for theaccused. We have not made any complaint regarding the above saidbehavior to the police. My statement was recorded at the PPPrashant Vihar. We have not called Panchayat in regard to thequarrel between my niece and Prem Singh.

Vol. We had gone tothe house of accused for number of times for reconsider the matterbut accused could not give any heed. My niece Sunita told meabout the attempt of accused to kill his both the children by wayof electric shock but I had not seen personally. We have not madeany complaint for the above incident to the police. I had not seenpersonally any beating by accused to his wife. The house ofaccused is about 5 km from my house. On 03.05.2009 I went to ABCDEFGH817canal at about 07:00 pm. When I saw accused near the canal andalso seen his children’s body. I did not report the matter to thepolice regarding conduct of accused qua my niece and the children.I had not seen the occurance. It is incorrect to suggest that I amdeposing falsely being the maternal uncle of Sunita or that accusedused to love Sunita and the children or that he did not commit thealleged offence or that being relative of Sunita I had deposedfalsely in the court.”*********“PW8- Statement of Rajender Yadav, aged 43 years S/O Sh.Jawahar Singh R/O WZ-342 Village Shakur Pur Delhi.

On SAI am running a shop in the name of M/s. Astha Enterprises at Sector-7 Rohini Delhi. Sunita W/O accused Prem Singh is myniece who has been married with accused for about 12-13 yearsbefore. Initially, accused Prem Singh was working as a transporterbut later on he left this work and become unemployed and heused to take liquor often. My niece used to tell whenever shevisited our house that accused used to abusing her and alsodemanding money and also gave beating her. We sometime helpher in cash. 2-3 years after the marriage Sunita’s both son Jiteshand Sunny live with us in our house for about 2 years. Because ofthe habit of acute drinking of accused he was once sent to NashaMukti Kendr by his wife Sunita but later on the family membersof accused released him against the wishes of Sunita. On the dayof release accused Prem Singh has given severe beatings to hiswife Sunita and both his children and in turn Sunita came to ourhouse leaving children at the house of accused at Haider Pur.

Wereceived a phone call for PS Prashant Vihar on 03.05.2009 thatthey have informed by Prem Singh that his 2 children has drownin the Haider Pur Canal while they were playing near the canal infront of him. We went to the PS, I and Mahender Singh son of myuncle late Sh. Ram Kishan and in the PS we saw that Prem Singhwas apprehended by the police and we were having strongsuspicion that Prem Singh has drown his both the children as hewas suspicion over the character of Sunita. During drunkencondition accused also gave beatings to his both the sons and hisPREM SINGH v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH818SUPREME COURT REPORTS[2023] 5 S.C.R.behavior towards his children was abnormal as he withdraw boththe children Jitesh and Sunny from the school……xxxxxx By Ms. Sadhna Bhatia (Amicus Curie) for the accusedPrem Singh. My statement was recorded by the police in PS on 03.05.2009in the evening.

It is correct that my statement was recorded on13.06.2009 after he was pointed out the date of statement recordedU/S 161 CRPc. I had stated to the police in my statement that Jitesh and Sunny were lived in our house before their death forabout 2 years. Confronted from statement EX PW-8/DA whereit is not so recorded. I have stated to the police that after returningfrom the Naksh Mukti Kendr accused has given beatings to hisboth sons. Confronted from statement EX PW-8/DA where it isnot so recorded. We have not made any complaint to the policeregarding beating of my niece and her children. It is wrong tosuggest that accused was not affectionate to his children and notsuspicion on the character of my niece. It is correct that my nieceonly informed about beating whenever she visited our house. It iscorrect that my niece and her sons were not beaten in my presence. It is wrong to suggest that I am deposing falsely.”*********“PW5 -Statement of Bishan Singh S/O Sh.

Girdhari Singh (recalledfor further examination since deferred dt. 06.09.2010)ON SAThe name of son of my brother Prem Singh is Jitesh and Sunny. At the time of incident my brother Prem Singh was unemployed. His habits were normal but he used to take liquor. Previously hewas having transport business and having 2 trucks but 4-5 yearbefore he has sold his trucks and thereafter he was running poultarymills and he indulged in the business only for one year andthereafter he become unemployed. There was tension betweenmy brother and his wife and during those days he was takingdrinks open. Some time we listen hitted conversation between mybrother and his wife. I do not know the real cause of their strangerelation. He was having normal relations with his children also. My brother Prem Singh was once admitted in Nasha Mukti Kendr ABCDEFGH819at Auchandi and he remained there for about one year. He wasreleased by my father Sh.

Girdhari Singh from the Nasha MuktiKendr on the assurance of Prem Singh to amend his habits andleave the habit of intoxication and also his condition wasdeteriorating….. I do not know what had happened with thechildren of Prem Singh. I listen from police person that my bothnephew were drowned in the Yamuna Canal. I was also went tohospital and after postmortem at BJRM Hospital. The dead bodyof my nephew Jitesh and Sunny was handed over to the relativesvide receipt EX PW-2/B signed by me at pt C. Police had recordedmy statement at PP Prashant Vihar but I do not know the datewhen my statement was recorded. At this stage, Ld. APP submits that he wants to cross examinethe witness as he is resiling from his previous statement. Heard. AllowedXxxxxx by Ld. APP for the State.I do not remember that my statement EX PW-5/A was recordedon 13.06.2009 or not. It is wrong to suggest that I have stated inmy statement that my brother Prem Singh during quarrel and inthe rage he used to abusing and beating his wife.

Confrontedfrom “A” to “A1” of my statement EX PW-5/A where it is sorecorded. I have not stated to the police that my brother wassuspicious over the character of his wifeand the suspicion wasbecause of the reason that whenever his wife come from thehouse of Mahender Singh, his maternal uncle situated at ShakurPur Village, she was brought by some boys of tenant of MahenderSingh. He was also not having affection like a father towards hisboth the sons and during quarrel he used to pin pointing that thesons were not belongs to him. Prem Singh was not controlledneither by me not his father. Confronted from “B” to “B1” of mystatement EX PW-5/A where it is so recorded. It is correct thatmy brother was released from the Nasha Mukti Kendr on29.04.2009. it is correct that on receiving the information from Rohini Court police staff on 03.05.2009 they informed that theygot an information for my brother Prem Singh that when both hisson Jitender and Sunny were present at Haider pur Canal andthey were running and playing in front of him they were drownedPREM SINGH v.

STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH820SUPREME COURT REPORTS[2023] 5 S.C.R.in the canal and flown (Beh Gaye) in the canal. I have not statedto the police that oftenly my brother cursing the character of hiswife and abusing and beating her and was having haterisim againsthis both the sons. Confronted from “C” to “C1” of my statementEX PW-5/A where it is so recorded. I have not stated to thepolice that the cause of suspicion over character of wife and fortaking revenge from his wife he has committed murder of hisboth son Jitesh and Sunny and thereafter informed to the policethat they were drowned in the canal when they were playing. Confronted from “D” to “D1” of my statement EX PW-5/A whereit is so recorded. It is wrong to suggest that accused is my brotheras such I am not giving the fair statement which I have gotrecorded during the police investigation. It is wrong to suggestthat due to passage time my anger cool down or that I am deposingin favour of accused Prem Singh.

It is wrong to suggest that Istrategically concealed the fact of haterism of my brother towardshis wife because of her character and concequently his ill behaviortowards his sons and ultimately causes the death of his sons.xxxxxx By Ms. Sadhna Bhatia (Amicus Curie) for the accusedPrem Singh. No complaint was lodged to the police when the quarrel eruptsbetween accused and his wife. Accused was having affectionand love towards his both the sons.”*********“PW9- Statement of Sunita Yadav, aged-35 years W/O Sh PremSingh R/O H. NO-225 Village Haider Pur Delhi. On SAI have been married with accused Prem Singh in the year 1996.After marriage I have been blessed with 2 sons. I used to run myhouse with the money earned by husband as well as some moneygiven by my father from the rent premises. I am 12th passed. Before marriage, I used to reside with my maternal uncle MahenderKumar Yadav since the age of three years.

My real parents wereliving in UP in a village Lohara Sarai, Distt. Bagpat. The residenceof my maternal uncle is at H.N -WZ/350, Shakurpur village, Delhi. My husband used to live me happily after marriage. I have no ABCDEFGH821complaint with my husband. On the day of incident, I went to thehouse of my maternal uncle as my Nani was ill leaving my boththe sons with their father/accused. There were no other reasonfor leaving my matrimonial house. I do not know what happenedwith the children. Later on, I received a phone call from PrashantVihar police station and stated that my both the sons have expired.I have not given statement to the police. Police has not recordedmy statement nor police inquired from me. I do not want to sayanything else in regard to this case. At this stage Ld. APP wants to cross examine the witness asshe is supressing the truth and is resiling from her earlier statementsrecorded by the police.

Heard. Allowed.xxxx by LD. APP for the StateI have not signed my statement on 4.5.2006. It is wrong tosuggest that police has recorded my statement on 4.5.2006 andthe same is marked PW9/A signed by me at point A. It is correctthat as the condition of my husband was not well as such he wasadmitted 4/5 months before the incident to Nasha Mukti Kender. Vol. Stated that my husband was not taking liquor at all and thedoctors of Nasha Mukti Kender stated that they will treated myhusband from a good doctor. I have not stated to the police thatafter my husband was released from Nasha Mukti Kender by myfather in law, we live peacefully for 2/3 days thereafter but on3.5.2009 at about 11.00 a.m my husband has given beatings to meas a result of which I had gone to the house of my maternal uncleleaving my both the sons with him and later on I came to knowthat my both the sons had drown in Haiderpur canal.

(confrontedwith portion A to A-1 of my statement mark PW9/A where it is sorecorded). It is wrong to suggest that police have also recordedmy statement and the same is mark PW9/B and I have stated inthe statement that after marriage I came to know that accusedPrem Singh was in a habit of taking liquor. (Confronted from portionA to A-1 of statement mark PW9/B where it is so recorded). It iscorrect that initially my husband was in the business of transportand he was having two trucks but later on, both the trucks weresold out and he become unemployed. It is wrong to suggest thatPREM SINGH v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH822SUPREME COURT REPORTS[2023] 5 S.C.R.he was taking liquor during his unemployment. (confronted fromportion B to B-1 of mark PW9/B wherein it is so recorded). It iswrong to suggest that accused used to abusing and beating me(Confronted with portion C to C of mark PW9/B wherein it is sorecorded).

It is wrong to suggest that two and half years beforethe incident, because of beating and ill behaviour of accused PremSingh, I alongwith my both sons went to the house of my maternaluncle and living in their house or that accused Prem Singh used toput filthy and dignatory allegations on me and stated to me‘characterless’ (Idher Udher Ke Adamiyo se Muh MarvatiFirthi Hai) (confronted with portion C to C-1 of Statement markPW9/B wherein it is so recorded. It is wrong to suggest that Ihave stated to the police officials that accused stated that bothour children were not from him and were due to my illicitrelationship. It is wrong to suggest that due to this reason I wasmuch perturbed because of his such behaviour or that my husbanddo not have affection with my both the sons and hate them. (confronted with portion D to D-1 of statement mark PW9/Bwherein it is so recorded). It is wrong to suggest that after releasingmy husband from Nasha Mukti Kender he has taunted me that Iused to call different boys and committed wrong act/sexual actwith them and both the sons are not his sons and threatened to killthem or that he has gave beatings to me and thrown me from hishouse and when I requested him to take both the sons with me, herefused and stated that I will kill them as they were both illegalchild.

(Confronted with portion E to E-1 of my statement markPW9/B where in it is so recorded).On the same night, police has informed me on telephone thatmy both the sons has drown in the Haiderpur canal and have alsostated that this fact was stated by the accused himself. I havealso not stated to the police that I have suspicion over my husbandthat he has killed both my child and falsely stated to the police thatthey were drown themselves. (Confronted with portion F to F-2of my statement mark PW9/B wherein it is so recorded). It iswrong to suggest that I have been won over by the accused orthat he being my husband I am not deposing the true facts of thecase or that I have been compromised or that I was emotionallyblackmail by the accused to depose in his favour. It is wrong to ABCDEFGH823suggest that the signatures belongs to me on mark PW9/A andvoluntarily I have given statement to the police officials.

It is wrongto suggest that accused has never suspicion on my character orthat to faded this issue I am deposing falsely. It is wrong to suggestthat I am deposing falsely. Xxxxxx By Ms. Sadhna Bhatia (Amicus Curie) for the accusedPrem Singh. It is correct that my husband loved my both the sons and I wasnever beaten or abused by my husband. It is correct thatmyhusband has never been commenting on my character and nevertold me characterless. It is correct that my relation with my husbandwere remained cordial after marriage.” 6.3. The fact that after the event in question, the appellant visitedthe office of Haiderpur Water Plant as also the nearby Petrol Pump andsuggested that his sons had accidentally fallen into the canal had notbeen of much dispute. These facts were duly established in the testimonyof PW-4 Mahesh Kumar Sharma and PW-6 Komal Ram related with Haiderpur Water Plant as also by PW-1 Naresh Kaushik, the deliveryboy at Indian Oil Petrol Pump.

In fact, PW-1 also testified to the factsthat the appellant made a call from his petrol pump to number 100 topolice and that the police officers visited the petrol pump and collectedrelevant evidence including the bill of telephone used by the appellant. For ready reference, we may only take note of the testimony of PW-1Naresh Kaushik as follows: -“PW 1 Sh. Naresh Kaushik S/o Ram kumar Kaushik R/o VPOVill Kiwana Tehsil Sambhalkha Disstt. Panipat, HaryanaOn S.A.On 3.05.2009 was working as delivery boy at Indian Oil Petrolpump in the name of Ridge view Shalimar Bagh, Opposite Haiderpur water plant. On that day at about 8:15 p.m. I was on dutythere accused prem singh present in the court today (correctlyidentified) came at said petrol pump and told me that, he hadcome along with his two sons for walking near Hadarpur Canaland while his both the sons were playing near the canal they felldown in the canal and drowned in his presence.

He also told methat he tried to save his sons by jumping in the canal and swimmingPREM SINGH v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH824SUPREME COURT REPORTS[2023] 5 S.C.R.to some distance but he was unable to save them. He requestedme to permit him to make a call at no. 100.I permitted him toinform the police by dialing no. 100 from the phone which wasinstalled at the office of my said petrolpump bearing no. 27492035.In my presence he again narrated the same facts to the police ontelephone. On 06.05.2007 some police officials alongwith accused whosename I came to know Prem Singh arrived at my petrol pump andI informed the police that he is the person who had made thetelephonic call to police on 03.05.2009 at 8.15 p.m from my petrolpump. On that day IO recorded my statement. On 11.07.09 IO inspector Partap Singh arrived at my petrolpump and he asked me to provide the bill of telephone no.

27492035.The said telephone no. is in the name of Sh. Narender KumarMahajan (owner of the said petrol pump). I handed over thephotocopy of the bill of said telephone no. from 01.02.09 to31.03.2009. The said bill was taken in police possession vide seizurememo Ex. PW1/A signed by me and the photocopy of the said billis marked PW1/A signed by me at point A.xxxxx by Ms. Sadhna Bhatia, Amicus Curie Ld. Counsel for theaccused. Accused Prem Singh came to petrol pump on 03.05.2009 atabout 8.15 p.m. and remained their for about 5 minutes. My firststatement was recorded on 06.05.2009 at the petrol pump. Noother witness was examined at petrol pump on that day.” 6.4. The fact that the dead bodies of both the children carriedvarious injuries including those on neck and the medical opinion that theydied due to asphyxia as a result of manual strangulation came to be dulyestablished in the testimony of PW-14 Dr.

V.K. Jha and the post-mortemreports Ex. P-14/A and Ex. P-14/C. The statement of PW-14 could alsobe usefully reproduced as under: -“PW-14. Statement of Dr. V.K. Jha, Medical Officer, BJRMHospital, Jahangipuri, Delhi.on SAOn 4.5.09 I conducted the postmortem of the dead body of Jitesh s/o Prem Singh aged about 9 years sent by SI Sunil Kumar ABCDEFGH825of PS Prashant Vihar with the alleged history of found dead in Haiderpur Water Plant.I observed following external injuries on the dead body of thedeceased.1. Two scratch abrasion over front of neck 1 cm. X .5 cm each.2. Right hand has washer man appearance.3. Both feet were wet and smeared with sand particles.4. Lower lip was contused. On internal examination of neck, the neck tissue was bruisedon front end side. Bruising was also observed in the midline overthyroid cartilage. After postmortem examination I opined causeof death as asphyxia as a result of manual strangulation.

All thesigns were ante-mortem in nature and neck injury was sufficientto cause death in ordinary course of nature. Time since deathwas approximately 19 hours. My detailed PM report is Ex. PW14/A which bears my signatures at point A.Blood and viscera of the deceased was preserved in commonsalt to rule out common poisoning. At this stage, I have seen the viscera report which is Ex. PW14/B in which no common poison have been detected. After perusalof the viscera report and PM report I am of the final opinion thecause of death is asphyxia as a result of manual strangulationinflicted by other party. On 4.05.09 I also conducted the postmortem of the dead bodyof Sunny s/o Prem Singh aged about 6 years sent by SI SunilKumar of PS Prashant Vihar with the alleged history of founddead in Haiderpur Water Plant.I observed following external injuries on the dead body of thedeceased.1. Left hand has washerman appearance.2.

Both feet were wet and smeared with sand particles.3. Three scratch abrasion of size 1cm x0.5 cm on front two innumbers and on left side one in number.PREM SINGH v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH826SUPREME COURT REPORTS[2023] 5 S.C.R.On internal examination of neck, the neck tissue was bruisedon front end sides and laceration over thyroid cartilage. Afterpostmortem examination I opined cause of death as asphyxia as aresult of manual strangulation. All the signs were ante-mortem innature and neck injury was sufficient to cause death in ordinarycourse of nature. Time since death was approximately 19 hours. My detailed PM report is Ex. PW14/C which bears my signaturesat point A.Blood and viscera of the deceased was preserved in commonsalt to rule out common poisoning. At this stage, I have seen the viscera report which is Ex. PW14/B in which no common poison have been detected.

After perusalof the viscera report and PM report I am of the final opinion thecause of death is asphyxia as a result of manual strangulationinflicted by other party.xxxxx By Ms. Sudhna Bhatia amicus curiae for accused. It is incorrect to suggest that I have not conducted thepostmortem of dead body of Jitesh and Sunny. It is incorrect tosuggest that I have signed the report and manipulated the same atthe instance of police.” 6.

All the memos were prepared either by me or under my supervisionby the police staff available at the spot. Ex. PW7/D was not inmy handwriting. It is wrong to suggest that accused wasapprehended on 03.05.09 from the Haiderpur water treatmentplant. It wrong to suggest that no disclosure statement was madeby the accused. It is wrong to suggest that all the proceedingswere conducted while sitting in the police station. It is wrong tosuggest that the accused is innocent who is falsely implicated inPREM SINGH v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH828SUPREME COURT REPORTS[2023] 5 S.C.R.this case or that he did not commit the alleged offence or that Idid not conduct investigation properly.” Stand of the appellant7. In his examination under Section 313 CrPC, the circumstancesappearing from the evidence led by the prosecution were put to theappellant. It is noticed that the appellant either denied the circumstancesand allegations put to him or stated his want of knowledge as regardsstatements of the witnesses who supported the prosecution case.

Asregards his admission to the rehabilitation centreand discharge, theappellant stated that such facts were a matter of record. Finally, hisassertion had been that he was innocent and the witnesses had deposedfalsely against him. However, he declined to lead any evidence in defence. Trial Court found the appellant guilty and awarded lifeimprisonment8. After having heard the parties and having examined the recordin its totality, the Trial Court found the prosecution case amply establishedby cogent and convincing chain of circumstances, pointing only to theguilt of the appellant, who caused the death of victim children bystrangulation and also caused the evidence to disappear by throwing thedead bodies into the canal. The appellant was, therefore, convicted ofthe offences under Section 302 and 201 IPC and was sentencedaccordingly.8.1. The Trial Court summarised the chain of circumstancesbringing home the guilt of the appellant and held as under: -“37.

In the present case, admittedly, there cannot be any eyewitness to the occurance and the prosecution has put forward thecircumstances and circumstantial evidence to bring home the guiltof the accused which certainly cannot be ignored. The prosecutionhas placed on record certain circumstances to bring home guilt ofthe accused regarding murdering of his sons which are as follows: (a) Accused Prem Singh and his deceased sons namelyJitesh and Sunny were lastly admittedly together with himtill they were alive(b) Motive and opportunity for the accused Prem Singh tocommit murder of his sons. (c) Conduct of the accused ABCDEFGH829(d) Medical Evidence38.(a) Accused Prem Singh and his deceased sons Jiteshand Sunny were lastly admittedly together with him till theywere alive: As already discussed at length, it is established andproved on the record that the accused Prem Singh who admittedly, was the father of the deceased Jitesh and Sunny were lastlytogether in their house after his wife Sunita had gone to her maternaluncle’s house leaving the custody of both the said children withthe accused Prem Singh and the accused himself has admittedthat thereafter, he took both the children Jitesh and Sunny to Haiderpur Canal for a walk and to enjoy and the accused hasstated that while both the children were playing, they fell down inthe Canal and got drowned and though he tried to save them byjumping into the canal but he did not succeed, hance as such it isnowhere in dispute that the accused and the deceased childrenwere admittedly together lastly till they died.

(b) Motive & Opportunity for the accused Prem Singhto commit said offence: The accused Prem Singh was certainlyhaving ample opportunity to strangulate his children as it was about7.45 p.m on that day when he took them to the Canal and admittedly, none else was present there. It is also shown from the testimoniesof the prosecution witnesses as already discussed at length thatthe accused had doubt over the character of his wife Sunita andhad preconceived notion that Jitesh and Sunny were not his sonsand so, he had developed a grudge against his wife and childrenand finding an appropriate opportunity as his wife was not in thehouse, he took them to Haiderpur Canal with the motive toeliminate them and asked the children to attend call of natureafter which when his elder son come first, he strangulated himand thrown his dead body in the Canal and then his other soncome whom also he strangulated and then had thrown his deadbody in the Canal and thereafter, he himself jumped into the Canalto pretend that he had made efforts to save them which in facthas not yielded him any benefit.

(c) Conduct of the accused : The conduct of the accusedPrem Singh has already been discussed at length that firstly hetook both his sons to the Haiderpur Canal where he manuallystrangulated them and threw their dead bodies in the Canal andPREM SINGH v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH830SUPREME COURT REPORTS[2023] 5 S.C.R.then he himself jumped into the Canal and swam for a considerabledistance and came out, so that he could tell the others that he hadmade genuine efforts to save them but in vain which has beenfalsified as already discussed. It is also proved on the record thathe himself narrated so to the officials of Water Treatment Plantand then to the employee of the nearby Petrol Pump from wherehe also telephonically informed the police officials and then toldthe same story to the police officials. In fact, it was after thepostmortem examinations of both the children, that it was crystalclear that they had not died of drowning but of manual strangulationprior to their drownings which injuries were sufficient in ordinarycourse of nature to cause their deaths and after trying to misleadpolice officials, he joined investigation to show his bonafide whichhas proved futile for the accused.

(d) Medical Evidence : As per record, though the accusedPrem Singh has stated that both the children had died of drowningand had seen them drowning, yet their postmortem examinationsreports have falsified his version which have been duly proved onrecords by Dr.V.K.Jha who has categorically deposed that boththe children were firstly manually strangulated which injuries wereantemortem in nature and were sufficient in ordinary course ofnature to cause their deaths and the deaths of both the deceasedwere the result of such strangulation and not of drowning whichhave entirely falsified the version of the accused that his sons haddied due to drowning and it is proved that they did not die ofdrowning but of manual strangulation. 39. Considering the totality of the facts and circumstances, on thebasis of the evidence adduced by the prosecution, as placed onthe record and in view of above discussion, Court is of theconsidered opinion that the witness examined by the prosecutionare cogent, convincing and have inspired the confidence of thecourt in so far as they have come forward with true picture of theoccurance and sufficient corroboration is available on the recordto ocular testimonies of the prosecution witnesses throughdocumentary evidence and as such no artificiality or exaggerationis observed in the case of the prosecution.

The court is of theconsidered opinion that :-(1) There is sufficient evidence on the record as lead by theprosecution regarding occurance and that the accused Prem Singh ABCDEFGH831had murdered his sons Jitesh and Sunny which has nowhere beenrebutted or shown to be false or manipulated and it is duly provedthat he was lastly present with both the children and hadstrangulating them after which he threw their dead bodies in the Canal and accordingly there is sufficient evidence on record fromwhich the inference of guilt is sought to be drawn against theaccused Prem Singh which has been cogently and firmlyestablished on record. (2) Prosecution has also proved that the circumstances haveunerringly pointed towards the guilt of the accused Prem Singhregarding committing murders of Jitesh and Sunny at the relevantdate, time and place after which he also caused the evidence todisappear by throwing their dead bodies in the Canal at whichpoint of time, he intended to screen himself from Legal Punishmentand gave information in this regard which he himself knew andbelieved to be false.

(3) The prosecution has also proved circumstances, which takencumulatively, form a chain so complete that there is no doubt atall, if the accused Prem Singh had not murdered his sons namelyJitesh and Sunny at the relevant date, time and place.40.(a) In view of foregoing discussion, the court is of theconsidered opinion that as per material placed on the record, thewitnesses examined by the prosecution are cogent, convincingand inspire confidence of the court in as far as they have comeforward with true and clear picture of the occurance and infactand sufficient corroboration is available on record on all materialaspects to the ocular versions of the witnesses not only from eachother but even from the documentary evidence which has ledsufficient support to the witness alongwith medical evidencewherein Dr. V.K.Jha has categorically opined and prayed thatboth the children Jitesh and Sunny had not died due to drowningbut died due to the manual strangulation which injuries wereantemortem in nature which were sufficient in ordinary course ofnature to cause their deaths which have nowhere been shown tobe false or manipulated and the testimonies of prosecutionwitnesses do not suffer any inherent or grave infirmities which goto the root of the matter and shake their basic versions.PREM SINGH v.

STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH832SUPREME COURT REPORTS[2023] 5 S.C.R.(b) Accordingly, considering the above, in the givencircumstances and on the basis of the material as placed on therecord, the only irresistible conclusion that can be drawn is thatthe accused Prem Singh had murdered both this sons namely Jiteshand Sunny by manually strangulated them and caused their deathswhich injuries have been proved to be antemortem and sufficientin ordinary course of nature to cause their deaths and it is alsoproved on the record that after murdering them, he had throwntheir dead bodies in the canal, so that the evidence regardingcommission of his offence of murdering his sons is destroyed withintention to save and screen himself from the legal punishment. Since prosecution has succeeded in bringing home guilt of theaccused on record beyond reasonable doubt, accordingly, accusedPrem Singh is convicted for committing offences as punishableunder section 302/201 IPC. Let he be heard on the point ofsentence.” 8.2.

The Trial Court further heard the parties on the question ofsentence. The submissions on behalf of the appellant in this hearing hadbeen for leniency in view of the facts that he had no criminal antecedentsand had been undergoing trial since the year 2009; and further that hehad a family to support and was the sole bread earner. The Trial Court, in its order dated 08.09.2011, after taking note of all the facts andcircumstances of the case and the nature of crime committed by theappellant, considered it appropriate to award the necessary punishmentsand, accordingly, sentenced him to rigorous imprisonment for life withfine of Rs. 10,000/- and default stipulation for the offence punishableunder Section 302 IPC; and to rigorous imprisonment for a period of 3years with fine of Rs. 2000/- and default stipulation for the offencepunishable under Section 201 IPC, with concurrent running ofpunishments.

High Court dismissed the appeal filed by the appellant9. In challenge to the conviction before the High Court, it wasessentially contended on behalf of the appellant that all the independentwitnesses did not support the prosecution case and there were missinglinks in the chain of events, particularly when the allegations of strainedrelationship of the appellant and his wife as also the allegations of theappellant doubting the chastity of his wife having fallen to the ground. Itwas contended that in the given circumstances, there were no reason ABCDEFGH833for which the appellant would have killed his own children. Per contra, it was submitted on behalf of the respondent-State that the scientificevidence clearly established the fact that the children died because ofmanual strangulation and not on account of drowning; and when theywere lastly seen in the company of the appellant, burden was heavy onhim to explain the whereabouts of his children as also the manner inwhich they came to be strangulated.

It was contended that rather thandischarging this burden, the appellant gave false information aboutaccidental drowning of the children, as clearly established by independentwitnesses.9.1. The High Court again analysed the entire evidence on recordand, while rejecting the contentions that the appellant was falselyimplicated or that there were material discrepancies in the prosecutioncase, dismissed the appealby its impugned judgment and order dated29.02.2016 while observing, inter alia, as under: -“52. Having discussed the testimonies of material witnesses indetail in the paragraphs aforegoing, we may note that PW-4,Mahesh Kumar Sharma and PW-6, Komal Ram are materialwitnesses. Both the witnesses have testified that they were onduty at Haidarpur Water Treatment Plant on the fateful day, i.e.on 03.05.2009. Both have also testified that the appellant had firstapproached Mahesh Kumar and informed him that he had cometo the canal along with his two sons who were playing near thecanal, they fell down and drowned.

As per the testimony of MaheshKumar, appellant had met him at about 7:45 p.m. and MaheshKumar had passed over this information regarding recovery ofdead bodies at number 100. On the truthfulness of this statement, there has been no cross-examination on behalf of the appellant.PW-6, Komal Ram has also testified on the lines of PW-4. A veryimportant factor which is to be noticed at this stage is that there isno cross-examination by the appellant regarding his not havinggone to canal along with sons and having not informed PW-4 andPW-6 regarding the drowning of his sons who were with him andhad drowned while playing. 53. Naresh Kaushik, PW-1 has testified that on 03.05.2009 whenhe was working as a delivery boy at Indian Oil Petrol Pump, Shalimar Bagh opposite Haiderpur Water Plant at about 8:25 p.m.,the appellant came to him and told him that he was walking nearPREM SINGH v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH834SUPREME COURT REPORTS[2023] 5 S.C.R.Haiderpur Canal with his sons and while his both the sons wereplaying, they fell down in the canal and drowned despite his havingtried to save them by jumping in the canal.

Appellant requestedhim to allow him to make a call at 100 number. In his presence, ontelephone number 27492035, the appellant narrated the above factsto the police officials. On 06.05.2009, he had identified theappellant in the presence of the police officials as the person whohad made a call at 100 number on 03.05.2009 at 8:15 p.m. Bill oftelephone number 27492035 Ex.PW1/A and the testimony of PW-1 stand established that a phone call was made by the appellant at100 number.54.PW-1, Naresh Kaushik had also identified the appellant whohad made phone call from his phone. We may, at this stage, alsonote that although the wife of the appellant had turned hostile, butas far as the children last seen in the company of the appellant isconcerned, it stands established by the testimony of PW-9, SunityYadav, wife of the appellant. She testified that “on the day ofincident, I went to the house of my maternal uncle as my Naniwas ill leaving my both the sons with their father/accused”.55.In view of the testimonies of PWs-1, 4, 6 and 9, in our view, itstands firmly established that the children were with their fatheras per the testimony of PW-9.

As per the testimonies of PWs-1, 4and 6, the appellant had himself informed them that his childrenhad come with him at the canal and while playing, they have gotdrowned. The testimonies of PWs-1, 4 and 6 on this aspect hasremained unrebutted. 56. Dr. V.K. Jha, PW-14, has testified that cause of death isasphyxia as a result of manual strangulation and all the injurieswere ante-mortem in nature and neck injury on their persons wassufficient to cause their death in the ordinary course of nature. The evidence of Dr. Jha clearly points out that the children did notdie due to drowning but on account of manual strangulation. Neitherthe appellant has been able to make any dent in the examinationof this witness nor there is any reason for us to disbelieve thetestimony of Dr. V.K. Jha. 57. The motive stands established. Upon reading of the testimonyof PW-7, Mahender Kumar Yadav, the deceased were the sonsof his niece Sunita.

He has testified that the appellant used to ABCDEFGH835comment on the chastity of her niece Sunita and accused her ofbad character. He was in the habit of drinking liquor and beatingSunita. This witness has also testified that the appellant used tocomment that the children did not belong to him but to someoneelse and, in fact, had attempted to kill the children in the park bygiving them electric shock. However, the children were saved bytheir mother. In the past, Sunita had remained in the house ofPW-7 for 5-6 months, however, she joined the company of herhusband but he continued to misbehave with her and used to talkinappropriately and accuse her of indulging in sexual activities. Even on 03.05.2009, as per the testimony of PW-7, the mother ofthe deceased had come to his house and informed him that appellantwas quarrelling with her. He had tried to reconcile the matter, butcould not succeed. On the same day, he received a phone call bythe police that both the children of his niece had died by drowningin the canal.

PW-7 has further testified that he had suspected thatboth the children had not drowned on their own but they werekilled by the appellant.58.PW-8, Rajender Yadav has also testified that his niece wasmarried to the appellant and whenever Sunita came to their house, she complained that appellant used to abuse her and beat her aswell as the children. On learning the news about death of both thechildren, this witness also testified that he had strong suspicionthat appellant had drowned his children on the issue of characterof Sunita. 59. In view of the testimonies of PW-7 and PW-8, motive standsclearly established that the appellant used to beat his wife andchildren under the influence of liquor. He suspected that thechildren did not belong to him but belong to someone else. Theappellant informed PW-1, PW-4 and PW-6 that the children haddrowned, whereas as per the testimony of PW-14, Dr. V.K. Jha, external injuries were found on the dead bodies and the cause ofdeath was manual strangulation.

Thus, in our view, the conduct ofthe appellant also points towards his guilt. 60. In the light of the testimonies discussed above, the submissionof learned counsel for the appellant that the appellant has beenfalsely implicated or that there are material discrepancies in theirtestimonies or the fact that the wife of the appellant has turnedPREM SINGH v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH836SUPREME COURT REPORTS[2023] 5 S.C.R.hostile thus there is no ground to convict the appellant, are allwithout any force. The Trial Court has passed a well-reasonedorder taking into consideration the testimonies of all the materialwitnesses which have been discussed hereinabove. 61. We find that there is no merit in the present appeal and thesame is accordingly dismissed.” Rival Submissions10. Assailing the judgment and order aforesaid, learned counselfor the appellant has put forward a variety of submissions to argue thatconviction of the appellant remains unsustainable.

The learned counselhas contended that the chain of circumstances in this case is not complete, particularly when the allegations of strained relationship of the appellantand his wife have not been proved and in any case, the prosecution hasfailed to establish motive for the appellant to murder his own children; that the appellant was incapable of understanding the nature of his actwhen admittedly he was in the habit of consuming liquor, was admittedto rehabilitation centre, and his discharge was taken against the adviceof the centre; that the Trial Court failed in its duty to examine the mentalcapacity of the appellant in terms of Section 329 CrPC and hence, theentire trial stood vitiated; and that in any case, mens rea could not beimputed on the appellant, who deserves to be given benefit of doubt or atleast the benefit of the Exceptions to Section 300 IPC.10.1. In the first place, learned counsel for the appellant hascontended that in case of circumstantial evidence, there ought to be acomplete chain of circumstances pointing towards nothing else but guiltof the accused; and in such cases, motive is of critical importance.

Inthe present case, according to the learned counsel, the motive set up bythe prosecution about the alleged strained relationship of the appellantwith his wife was not a motive strong enough for the appellant to committhe 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. The learned counsel would, therefore, contend that an important link inthe chain of circumstances, i.e., motive, having not been established, theappellant deserves to be acquitted.10.2. The main plank of the submissions on behalf of the appellanthad been with reference to his alleged addiction to liquor and his admissionto the rehabilitation centre. Learned counsel for the appellant would ABCDEFGH837argue, particularly with reference to the statements of PW-2 Puran Singh, cousin of the appellant, and PW-3 Jagbir, manager of rehabilitationcentre, that the appellant was undoubtedly undergoing treatment for hisaddiction to liquor and was discharged against advice prematurely; and, the evidence on record, read as a whole, lead to the position that theappellant could not have been treated as a person capable ofunderstanding the nature of his act.

According to the learned counsel, even if the evidence of PW-2 and PW-3 may not be sufficient to givethe benefit of Section 84 IPC, it definitely gives rise to a doubt withregard to the mental capacity of the appellant. In this regard, the learnedcounsel has also referred to the additional documents placed on recordto the effect that even post-conviction, the appellant has been treatedfor his mental condition; he was distinguished as a psychiatric case; andwas admitted to the Central Jail Hospital for treatment.10.3. With reference to the aforesaid factors concerning the mentalcapacity of the appellant, learned counsel would submit that the entiretrial in the present case stands vitiated, for the Trial Court having omittedto examine the capacity of the accused-appellant in terms of Section329 CrPC. Learned counsel has also referred to the decision of GujaratHigh Court in the case of State of Gujarat v.Manjuben: 2019 SCCOnLine Guj 6937 and has submitted that, in the present case, lookingto the background factors concerning mental capacity of the appellantappearing in evidence, it was the duty of the Trial Court to examine if hewas of unsound mind and consequently incapable of making his defence.10.3.1.

Learned counsel has further argued that when theprosecution and the investigating agency came across the evidence inrelation to the mental condition of the appellant, it was their duty to havehim medically examined and to place the evidence before the Trial Court. This having not been done, the infirmity, according to the learned counsel, ought to result in acquittal of the appellant. In this regard, the learnedcounsel has also referred to a decision of Bombay High Court in thecase of Ajay Ram Pandit v. State of Maharashtra: 2022 SCC OnLineBom 3920.10.3.2. Learned counsel for the appellant has further submittedthat although in the present case neither the public prosecutor nor thedefence counsel raised the issue of mental capacity of the appellant, the Trial Court was under an obligation to ascertain his mental capacity, particularly in view of the prima facie evidence available before it.PREM SINGH v.

STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH838SUPREME COURT REPORTS[2023] 5 S.C.R.According to the learned counsel, it was the duty of the Trial Court tohave made such an assessment and for that purpose, conclusive evidencewas not required and presence of some doubt itself was sufficient. Thenecessary enquiry having not been made, the trial stands vitiated andconsequently, the benefit ought to be extended to the accused-appellant. The learned counsel has also referred to the decision in A.R. Antulay v.R.S. Nayak: (1988) 2 SCC 602 to submit that the act of the Courtshould not harm a litigant. The learned counsel has even referred to adecision of the Supreme Court of the State of Delaware in Eric Dolbyv. State of Delaware decided on 02.03.2012 to submit that therein theaccused was permitted to raise the defence of competence even thoughit was not as such raised by the counsel and has submitted that the TrialCourt ought to have ordered examination of the accused with regard tothe propensity/capacity.10.3.3.

Learned counsel has extended his submissions to the effectthat since the evidence of PW-2 and PW-3 gave rise to a doubt in relationto the mental capacity of the appellant, the Trial Court ought to havegiven an opportunity to the appellant to explain the circumstances ofsuch normality/abnormality at the time of his examination under Section313 CrPC because these aspects had a bearing on his capacity andultimately on his defence. The learned counsel has submitted withreference to an observation of this Court in the case of Rahul v. Stateof Delhi, Ministry of Home Affairs and Anr.: 2022 SCC OnLineSC 1532, that a Judge is not expected to be a passive umpire but issupposed to actively participate in the trial, and to question the witnessesto reach to a correct conclusion. The learned counsel would submit that, in the present case, the witnesses examined to establish the guilt werenot cross-examined on the relevant factors, particularly as regards mentalcapacity of the appellant, which ought to have been ensured by the TrialCourt.10.4.In the last limb of submissions, learned counsel for theappellant has submitted that even if it be taken that the evidence onrecord did not establish conclusively the mental incapacity of the appellant, it indeed raised a reasonable doubt as regards existence of all theingredients of Section 300 IPC, including mens rea and hence, theappellant was entitled to be extended the benefit of doubt.

The learnedcounsel would also submit in the alternative that the conviction, if at all, ought to have been under Section 304 IPC. In this regard, the learned ABCDEFGH839counsel has referred to a decision of Calcutta High Court in the case of King-Emperor v. Tincouri Dhopi: 1922 SCC OnLine Cal 90 to submitthat therein the mental state of the appellant, who was a habitual ganjasmoker, was taken into consideration and accordingly, capital sentencewas converted to transportation for life to meet the ends of justice.10.5. Therefore, according to the learned counsel for the appellant, in view of serious infirmity in the trial, benefit of doubt deserves to begiven to the appellant and in the alternative, the conviction deserves tobe converted to one under Section 304 IPC and sentence deserves to bereduced to the period of imprisonment already undergone.11. While refuting the submissions made on behalf of the appellant, learned counsel for the respondent-State has argued that thecircumstantial evidence on record undoubtedly lead to the conclusion ofguilt of the appellant and no case for interference is made out.11.1.

Learned counsel for the respondent-State has emphaticallysubmitted that the fundamental fact remains rather undeniable that theappellant was last person in the company of the deceased children andis amply established by the deposition of PW-1, the attendant at thepetrol pump, and PW-4 and PW-6, the personnel on duty at the watertreatment plant. This apart, the fact that the children were in the companyof the appellant is established even in the testimony of PW-9, wife of theappellant. Learned counsel would submit that there is nothing on recordto suggest the presence of any other person with the deceased childrenat the time and place of occurrence; and the appellant has not shown hispresence at any other place or his having parted with the company ofthe deceased. Learned counsel has further argued that the medicalevidence of PW-14 leaves nothing to doubt that the cause of death ofthe victim children had been asphyxia as a result of manual strangulation.

Thus, according to the learned counsel, in the given set of circumstances, when the death of the victim children was homicidal in nature and theappellant rather attempted to project a false narrative that they fell intothe canalaccidentally, the concurrent findings of his conviction cannotbe said to be suffering from any infirmity.11.2.Learned counsel has referred to Section 106 of the IndianEvidence Act and a decision of this Court in the case of SabitriSamantaray v. State of Odisha: 2022 SCC OnLine SC 673 to submitthat in the present case, the appellant having failed to explain thePREM SINGH v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH840SUPREME COURT REPORTS[2023] 5 S.C.R.circumstances which were within his special knowledge, particularlyafter the prosecution had clearly established the basic facts about thedeceased being lastly in the company of the appellant and that theirdeath was homicidal in nature with manual strangulation, the want ofexplanation of the appellant definitely provides a strong link in the chainof events.11.3.

As regards motive, learned counsel for the respondent-Statehas particularly referred to the testimonies of PW-7 and PW-8 to submitthat the facts were clearly established that the relationship between theappellant and his wife was strained; and the reason for such strainedrelations was the appellant’s constant suspicion over the character ofhis wife and in turn, his doubts on the paternity of the victim boys. Thus, according to the learned counsel, a case of strong motive for killing ofthe victim children is also established where the appellant suspectedthem to not be his sons.11.4. As regards the plea of unsoundness of mind of the appellant, learned counsel for the respondent-State has submitted that such a pleawas never raised in the defence or in evidence or in appeal or even inthe petition filed before this Court. Learned counsel has further submittedthat as a matter of legal principle, if previous history of accused person’sinsanity is revealed, the investigating officer is duty bound to subject himto medical examination and to submit the evidence to the Court; andfailure to do so may amount to serious infirmity which may lead to benefitof doubt to the accused but, in such cases, the onus of producing evidencewith respect to the conduct and mental condition is on the accused andthe Court is not expected to presume to the contrary.

While relying upona decision of this Court in the case of Bapu alias Gujraj Singh v. Stateof Rajasthan: (2007) 8 SCC 66, learned counsel has submitted thatthe plea of unsoundness of mind qua the appellant is untenable not justowing to the fact that no such plea or evidence was placed during thetrial or even before the High Court but also because the appellant had noprevious history of insanity as such. In this regard, learned counsel hasreferred to the testimony of PW-3, the manager of rehabilitation centreto the effect that during the period of admission, the appellant’s behaviourwas like an ordinary prudent man and he was never administered anymedicine for mental illness, for no such illness having been observed norany previous history having been given by his family members. ABCDEFGH84111.5. Learned counsel for the respondent-State has also submittedthat the plea of unsoundness of mind, if at all, could only be raised by thedefence to rule out the forming of mens rea but a case of purportedsubsequent mental illness cannot be raised to invoke the exceptions of Section 300 IPC. Thus, according to the learned counsel, reference tothe treatment of the appellant post-conviction in psychiatry ward becauseof the complaints of abnormal behaviour is of no avail to the appellant.

Learned counsel has referred to decisions of this Court in ShrikantAnandrao Bhosale v. State of Maharashtra: (2002) 7 SCC 748 and Dahyabhai Chhaganbhai Thakkar v. State of Gujarat: AIR 1964SC 1563.11.6.Learned counsel for the respondent-State has furthersubmitted that the suggestions to the effect that the appellant might behaving requisite knowledge but was lacking an intention to commit thecrime remains untenable for the reasons, inter alia, that the appellantmeticulously planned the crime by taking his children to the canal at atime when he was vested with their sole custody in the absence of hiswife; he mercilessly strangulated the children one by one and if at allanopportunity of realisation were to be visualised, at least after killingthe first child he had ample time and opportunity to restrain himself andnot to kill the other one. This apart, according to the learned counsel, after gruesome killing of the two children, the appellant enacted anelaborate ploy by interacting with the persons in the vicinity and attemptedto create a false narrative of drowning of the children.

In the given setof facts, according to the learned counsel, the appellant’s case does notfall under any of the exceptions contained in Section 300 IPC and hence, the concurrent findings against him call for no interference. The scope and width of this appeal12. As noticed, the Trial Court and the High Court haveconcurrently recorded the findings in this case that the prosecution hasbeen able to establish the chain of circumstances leading to the onlyconclusion that the appellant is guilty of the offences of murder of hissons and causing disappearance of evidence. Though the parameters ofexamining the matters in an appeal by special leave under Article 136 ofthe Constitution of India have been laid down repeatedly by this Court inseveral of the decisions but, having regard to the submissions made inthis case, we may usefully reiterate the observations in the case of Pappuv. The State of Uttar Pradesh: 2022 SCC OnLine SC 176 wherein, PREM SINGH v.

STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH842SUPREME COURT REPORTS[2023] 5 S.C.R.after referring to Articles 134 and 136 of the Constitution of India and Section 2 of the Supreme Court (Enlargement of Criminal AppellateJurisdiction) Act, 1970 as also with a detailed reference to the relevantdecisions, this Court has summed up the subtle distinction in the scope ofa regular appeal and an appeal by specialleave in the following words: -“20.…. In such an appeal by special leave, where the Trial Courtand the High Court have concurrently returned the findings offact after appreciation of evidence, each and every finding offact cannot be contested nor such an appeal could be dealt withas if another forum for reappreciation of evidence. Of course, ifthe assessment by the Trial Court and the High Court could besaid to be vitiated by any error of law or procedure or misreadingof evidence or in disregard to the norms of judicial process leadingto serious prejudice or injustice, this Court may, and in appropriatecases would, interfere in order to prevent grave or seriousmiscarriage of justice but, such a course is adopted only in rareand exceptional cases of manifest illegality.

Tersely put, it is not amatter of regular appeal. This Court would not interfere with theconcurrent findings of fact based on pure appreciation of evidencenor it is the scope of these appeals that this Court would enter intoreappreciation of evidence so as to take a view different than thattaken by the Trial Court and approved by the High Court.” 12.1.Keeping the principles aforesaid in view, we may examineif the concurrent findings call for any interference in this case whilereiterating that wholesome reappreciation of evidence is not within thescope of this appeal, even though we have scanned through the entireevidence in order to appropriately deal with the contentions urged beforeus. The principles relating to circumstantial evidence; burdenof explanation; hostile witness; and motive13. Learned counsel for the appellant has argued that there hadbeen several shortcomings in the prosecution case and that the reliedupon factors, including the medical evidence and the so-called falsity ofexplanation of the appellant, are not sufficient to arrive at a finding ofguilt against the appellant, particularly when the allegations relating tomotive have not been established.

While dealing with such submissions, we may usefully take note of the basic principles applicable to the case. ABCDEFGH84313.1. The principles explained and enunciated in the case of Sharad Birdhichand Sarda v. State of Maharashtra: (1984) 4 SCC116 remain a guiding light for the Courts in regard to the proof of a casebased on circumstantial evidence. Therein, this Court referred to thecelebrated decision in Hanumant v. State of Madhya Pradesh: AIR1952 SC 343 and deduced five golden principles of proving a casebased on circumstantial evidence in the following terms:-“152........................It may be useful to extract what Mahajan,J. has laid down in Hanumantcase: “It is well to remember that in cases where the evidence is ofa circumstantial nature, the circumstances from which theconclusion of guilt is to be drawn should in the first instance befully established, and all the facts so established should beconsistent only with the hypothesis of the guilt of the accused.

Again, the circumstances should be of a conclusive nature andtendency and they should be such as to exclude everyhypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not toleave any reasonable ground for a conclusion consistent withthe innocence of the accused and it must besuch as to showthat within all human probability the act must have been doneby the accused.” 153. A close analysis of this decision would show that the followingconditions must be fulfilled before a case against an accused canbe said to be fully established: (1) the circumstances from which the conclusion of guilt is to bedrawn should be fully established. It may be noted here that this Court indicated that thecircumstances concerned” must or should” and not “maybe” established. There is not only a grammatical but a legaldistinction between “may be proved” and “must be or should beproved” as was held by this Court in Shivaji Sahabrao Bobadev.

State of Maharashtra6 where the observations were made:

Certainly, it is a primary principle that the accused must be andnot merely may be guilty before a court can convict and the mental6 (1973) 2 SCC 793.PREM SINGH v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH844SUPREME COURT REPORTS[2023] 5 S.C.R.distance between ‘may be’and‘must be’is long and divides vagueconjectures from sure conclusions.

(2) the facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that the accusedis guilty,(3) the circumstances should be of a conclusive nature andtendency,(4) they should exclude every possible hypothesis except the oneto be proved, and(5) there must be a chain of evidence so complete as not to leaveany reasonable ground for the conclusion consistent with theinnocence of the accused and must show that in all humanprobability the act must have been done by the accused.154.

These five golden principles, if we may say so, constitutethe panchsheel of the proof of a case based on circumstantialevidence.” 13.1.1. It is also pertinent to notice that in the said case of SharadBirdhichand Sarda, this Court also enunciated the principles for usingthe false explanation or false defence as an additional link to completethe chain of circumstances in the following terms: -“158. It may be necessary here to notice a very forceful argumentsubmitted by the Additional Solicitor General relying on a decisionof this Court in Deonandan Mishra v. State of Bihar7 tosupplement his argument that if the defence case is false it wouldconstitute an additional link so as to fortify the prosecutioncase……..159. It will be seen that this Court while taking into account theabsence of explanation or a false explanation did hold that it willamount to be an additional link to complete the chain but theseobservations must be read in the light of what this Court saidearlier viz. before a false explanation can be used as additionallink, the following essential conditions must be satisfied: (1) various links in the chain of evidence led by the prosecutionhave been satisfactorily proved,7 AIR 1955 SC 801: (1955) 2 SCR 570, 582.

ABCDEFGH845(2) the said circumstance points to the guilt of the accused withreasonable definiteness, and(3) the circumstance is in proximity to the time and situation.160. If these conditions are fulfilled only then a court can use afalse explanation or a false defence as an additional link to lendan assurance to the court and not otherwise.……..” 14. Moving on to the other applicable provisions and principles, we may usefully take note of Section 106 of the Evidence Act, castingburden of proving a fact especially within knowledge of any person, anda few relevant decisions in regard to its operation qua an accused.14.1.Section 106 of the Evidence Act reads as under: -“106. Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 14.2.In the case of Trimukh Maroti Kirkan v. State of Maharashtra: (2006) 10 SCC 681, the accused was charged of themurder of his wife; there had been allegations of ill-treatment of thedeceased-wife by the accused-husband; and though the victim had beenkilled by strangulation, the information given to her parents as also to allin the village was that she had died on account of snakebite.

After takingnote of the facts of the case, this Court exposited on the principlesgoverning the assessment of circumstantial evidence, the operation of Section 106 of the Evidence Act, and the effect of want of necessaryexplanation or giving of false explanation by the accused, inter alia, inthe following passages: -“14. If an offence takes place inside the privacy of a house andin such circumstances where the assailants have all theopportunity to plan and commit the offence at the time and incircumstances of their choice, it will be extremely difficult for theprosecution to lead evidence to establish the guilt of the accusedif the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over acriminal trial merely to see that no innocent man is punished. Ajudge also presides to see that a guilty man does not escape. Bothare public duties.

(See Stirland v. Director of PublicProsecutions8 — quoted with approval by Arijit Pasayat, J.8 1944 AC 315: (1944) 2 All ER 13 (HL).PREM SINGH v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH846SUPREME COURT REPORTS[2023] 5 S.C.R.in State of Punjab v. Karnail Singh9.) The law does not enjoina duty on the prosecution to lead evidence of such character whichis almost impossible to be led or at any rate extremely difficult tobe led. The duty on the prosecution is to lead such evidence whichit is capable of leading, having regard to the facts andcircumstances of the case. Here it is necessary to keep in mindSection 106 of the Evidence Act which says that when any fact isespecially within the knowledge of any person, the burden ofproving that fact is upon him…….15. Where an offence like murder is committed in secrecy insidea house, the initial burden to establish the case would undoubtedlybe upon the prosecution, but the nature and amount of evidenceto be led by it to establish the charge cannot be of the same degreeas is required in other cases of circumstantial evidence.

Theburden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a correspondingburden on the inmates of the house to give a cogent explanationas to how the crime was committed. The inmates of the housecannot get away by simply keeping quiet and offering noexplanation on the supposed premise that the burden to establishits case lies entirely upon the prosecution and there is no duty atall on an accused to offer any explanation.*********21.In a case based on circumstantial evidence where noeyewitness account is available, there is another principle of lawwhich must be kept in mind. The principle is that when anincriminating circumstance is put to the accused and the saidaccused either offers no explanation or offers an explanation whichis found to be untrue, then the same becomes an additional link inthe chain of circumstances to make it complete.

This view hasbeen taken in a catena of decisions of this Court.” 14.3.The case of Sudru v. State of Chhattisgarh: (2019) 8SCC 333 had been the one where the appellant was charged of themurder of his son in his house; and the principal prosecution witnesses, including wife of the appellant, turned hostile to the prosecution but, thefacts did come out of their testimony that the deceased was left alone in9 (2003) 11 SCC 271: 2004 SCC (Cri) 135. ABCDEFGH847the company of the appellant and the next day, the deceased was founddead. Taking note of the salient features of the case and operation of therequirements of Section 106 of the Evidence Act, this Court observed, as regards consideration of the relevant part of evidence of a hostilewitness and the effect of failure on the part of the accused to dischargehis burden, as follows: -“6. No doubt, in the present case all the witnesses who are relatedto the accused and the deceased have turned hostile.

PW 1 JankiBai, wife of the appellant and the mother of the deceased hasalso turned hostile. However, by now it is settled principle of law, that such part of the evidence of a hostile witness which is foundto be credible could be taken into consideration and it is notnecessary to discard the entire evidence...*********“8. In this view of the matter, after the prosecution has establishedthe aforesaid fact, the burden would shift upon the appellant under Section 106 of the Evidence Act. Once the prosecution proves, that it is the deceased and the appellant, who were alone in thatroom and on the next day morning the dead body of the deceasedwas found, the onus shifts on the appellant to explain, as to whathas happened in that night and as to how the death of the deceasedhas occurred.14.4. Apart from the above, we may also usefully take note of therecent decision of this Court in the case of Sabitri Samantaray (supra).Therein, with reference to Section 106 of the Evidence Act, a 3-JudgeBench of this Court noted that if the accused had a different intention, the facts are especially within his knowledge which he must prove; andif, in a case based on circumstantial evidence, the accused evadesresponse to an incriminating questionor offers a response which is nottrue, such a response, initself, would become an additional link in thechain of events.

The relevant part of the enunciation by this Court readsas under: -

19. Thus, although Section 106 is in no way aimed at relievingthe prosecution from its burden to establish the guilt of an accused, it applies to cases where chain of events has been successfullyestablished by the prosecution, from which a reasonable inferenceis made out against the accused. Moreover, in a case based onPREM SINGH v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH848SUPREME COURT REPORTS[2023] 5 S.C.R.circumstantial evidence, whenever an incriminating question isposed to the accused and he or she either evades response, oroffers a response which is not true, then such a response in itselfbecomes an additional link in the chain of events.

15. As regards the relevancy of motive in a case based oncircumstantial evidence, the weight of authorities is on principles that ifmotive is proved, that would supply another link in the chain ofcircumstantial evidence but, absence of motive cannot be a ground toreject the prosecution case, though such an absence of motive is a factorthat weighs in favour of the accused.

In Anwar Ali and Anr. v. State of Himachal Pradesh: (2020) 10 SCC 166, this Court has referred toand relied upon the principles enunciated in previous decisions and haslaid down as under: -“24. Now so far as the submission on behalf of the accused thatin the present case the prosecution has failed to establish andprove the motive and therefore the accused deserves acquittal isconcerned, it is true that the absence of proving the motive cannotbe a ground to reject the prosecution case. It is also true and asheld by this Court in Suresh Chandra Bahri v. State of Bihar10that if motive is proved that would supply a link in the chain ofcircumstantial evidence but the absence thereof cannot be aground to reject the prosecution case. However, at the same time, as observed by this Court in Babu11, absence of motive in a casedepending on circumstantial evidence is a factor that weighs infavour of the accused.

In paras 25 and 26, it is observed and heldas under:-“25. In State of U.P. v. Kishanpal12, this Court examinedthe importance of motive in cases of circumstantial evidenceand observed:‘38. … the motive is a thing which is primarily known tothe accused themselves and it is not possible for theprosecution to explain what actually promoted or excitedthem to commit the particular crime.39. The motive may be considered as a circumstancewhich is relevant for assessing the evidence but if the10 1995 Supp (1) SCC 80:1995 SCC (Cri) 60.11 (2010) 9 SCC 189: (2010) 3 SCC (Cri) 1179.12 (2008) 16 SCC 73: (2010) 4 SCC (Cri) 182. ABCDEFGH849evidence is clear and unambiguous and the circumstancesprove the guilt of the accused, the same is not weakenedeven if the motive is not a very strong one……...’26. This Court has also held that the absence of motive in acase depending on circumstantial evidence is a factor that weighsin favour of the accused.

(Vide Pannayar v. State of T.N.13).”” Application of the relevant principles to the facts of this case16. Keeping the aforesaid principles in view, when we examinethe facts of this case and the concurrent findings of the Trial Court andthe High Court, we find no substance in the contentions urged bylearnedcounsel for the appellant.16.1. It is amply established on record that the deceased children, aged 9 years and 6 years respectively, died an unnatural death and thoughthe bodies were retrieved from canal, it had not been a case of theirdrowning but, as specifically proved by the post-mortem reports and thetestimony of PW-14 Dr. V.K. Jha, the cause of their death had beenasphyxia as a result of manual strangulation. There is nothing on recordto disbelieve the testimony of PW-14 Dr. V.K. Jha. The only line ofcross-examination of this witness had been as if he did not carry outpost-mortem examination of the dead bodies of the victim children andthat he manipulated the report at the instance of police.

We are unableto find any substance or logic in this line of cross-examination. The factthat the dead bodies of the victim children were indeed retrieved fromcanal is hardly a matter of doubt and has indeed been established in thetestimony of PW-18 SI Sunil Kumar, PW-17 Inspector Pratap Singh asalso other private witnesses, including the relatives of the appellant andhis wife. It had been too far-stretched to suggest that the medical officerdid not examine the dead bodies of the victim children, as sent to him bythe investigating officer or his having manipulated the report. The evidenceavailable on record, taken as a whole, leaves nothing to doubt that thevictim children had been subjected to manual strangulation which resultedin their death. Obviously, their dead bodies were thereafter thrown inthe canal to project as if it were a case of drowning.16.2. The fact that the deceased children, when alive, were lastlyin the company of the appellant alone is also not of much doubt or debate.

In this regard, even before looking at any other evidence, suffice it to13 (2009) 9 SCC 152: (2009) 3 SCC (Civ) 638: (2010) 2 SCC (Cri) 1480.PREM SINGH v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH850SUPREME COURT REPORTS[2023] 5 S.C.R.notice that PW-9 Sunita Yadav, wife of the appellant, who otherwise didnot support the prosecution case, clearly stated the crucial factthat onthe day of incident, the children were left by her with the appellant. Sheindeed stated that ‘on the day of incident, I went to the house of mymaternal uncle as my Nani was ill leaving my both the sons withtheir father/accused’. She later on received the call from the policestation about demise of her sons. Therefore, it remains rather undeniablethat the deceased children were lastly in the company of the appellantalone.16.3. In regard to the chain of circumstances in the present case, the statements of three independent witnesses PW-1 Naresh Kaushik, delivery boy at the Petrol Pump as also PW-4 Mahesh Kumar Sharmaand PW-6 Komal Ram, the personnel in-charge at the Water TreatmentPlant assume significance, who testified to the facts that the appellantdid visit them immediately after the incident and specifically stated beforethem that his sons had accidentally fallen into the canal.

There is nothingon record to disbelieve the testimony of these witnesses. We havereproduced hereinbefore the statement of PW-1 Naresh Kaushik and itis noticeable that there had not been anything in his cross-examinationwhich could create any doubt on his narration. Similar had been theposition as regards the testimony of PW-4 and PW-6. In fact, PW-4Mahesh Kumar Sharma was not cross-examined at all; and the cross-examination of PW-6 had also essentially been of a suggestion as if theaccused-appellant did not meet him on the given day. When thestatements of independent witnesses PW-1, PW-4 and PW-6 are readtogether with the statement of PW-9, wife of the appellant, not only thecircumstance of the deceased children being lastly in the company ofthe accused-appellant is established but, further to that, it is alsoestablished that the appellant attempted to create a false narrative ofaccidental drowning of the children.

This false narrative, in the facts ofthe present case, becomes another strong link in the chain ofcircumstances.16.4. When the facts established by the evidence on record andthe surrounding factors are put together, the chain of circumstances hadunfailingly been that the deceased children were lastly seen alive in thecompany of the appellant; they died because of manual strangulationand obviously, their death was homicidal in nature; their dead bodieswere recovered from the canal; and the appellant attempted to project ABCDEFGH851that they had accidentally fallen into the canal. In the given set ofcircumstances, when the deceased children were in the company of theappellant, who was none else but their father and when their death wascaused by manual strangulation, the burden, perforce, was heavy uponthe appellantto clarify the facts leading to the demise of his sons, whichwould be presumed to be specially within his knowledge.

Thus, theprinciples of Section 106 of the Evidence Act operate heavily againstthe appellant.16.4.1. It is, ofcourse, the duty of prosecution to lead the primaryevidence of proving its case beyond reasonable doubt but, when necessaryevidence had indeed been led, the corresponding burden was heavy onthe appellant in terms of Section 106 of the Evidence Act to explain as towhat had happened at the time of incident and as to how the death of thedeceased occurred. There had not been any explanation on the part ofthe appellant and, as noticed, immediately after the incident, he attemptedto create a false narrative of accidental drowning of the children. Therehad not been any specific response from the appellant in his statementunder Section 313 CrPC either.17. Taking all the facts and factors together, the chain ofcircumstances leading only to the hypothesis of the guilt of the appellanthas been duly visualised and analysed by the Trial Court as also by the High Court.

That being the position, learned counsel for the appellanthas endeavoured to submit that an important link in the chain ofcircumstances, i.e., motive, has not been established and in that regard, reliance has particularly been placed on the statement of the wife of theappellant PW-9 Sunita Yadav, who did not support the prosecutionallegations about strained relationship of the appellant and herself.17.1. As noticed, motive, when proved, supplies additional link inthe chain of circumstantial evidence but, absence thereof cannot, byitself, be a ground to reject the prosecution case; although absence ofmotive in a case based on circumstantial evidence is a factor that weighsin favour of the accused.17.2.The question of motive in the present case, in our view, cannot be examined only with reference to the testimony of the wife ofthe appellant who has, even while admitting that she left the children inthe company of the appellant and thereafter heard only about their demise, chosen not to support the accusations against the appellant.

However, her testimony is contradicted by at least three prosecution witnessesPREM SINGH v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH852SUPREME COURT REPORTS[2023] 5 S.C.R.with two of them, PW-7 Mahender Kumar Yadav and PW-8 RajenderYadav being her uncles, who maintained that there were strained relationsof the appellant and his wife and that the appellant doubted the characterof his wife as also the paternity of the children. Even PW-5 BishanSingh, brother of the appellant, though attempted to depose against theprosecution case but indeed testified to the fact that there had beenstrains in the relationship of the appellant and his wife. The submissionthat strained relationship of appellant with his wife may not providesufficient motive for killing the children cannot be accepted for the reasonthat the motive projected in the present case had been that the appellantdoubted the paternity of the deceased children and suspected that theywere not his sons.17.3.

We are clearly of the view that when the evidence on recordunambiguously proves the guilt of the accused-appellant, the factorrelating to motive cannot displace or weaken the conclusions naturallyflowing from the evidence. Moreover, the present case cannot be saidto be of want of motive altogether. Differently put, in our view, when allthe facts and circumstances are taken together, the present one is not acase where there had been any missing link in the chain of circumstances, leading only to the conclusion of the guilt of the appellant.18. As noticed, the Trial Court and the High Court haveconcurrently recorded the findings that the prosecution has been able toestablish the chain of circumstances leading to the conclusion that theappellant is guilty of the offence of murder of the victim children, hissons, as also the offence of causing disappearance of evidence. Thereappears no infirmity in the findings so recorded.

Plea of mental incapacity of the appellant19. The chain of circumstances against the appellant beingcomplete and strong, learned counsel for the appellant has endeavouredto make out a case of alleged unsoundness of mind of the accused-appellant and has developed a few contentions in that regard that theintent of committing crime cannot be imputed on the appellant looking tohis mental instability; and that the entire trial stood vitiated for want ofcompliance of Section 329 CrPC.19.1. Sections 84 IPC,86 IPC,329 CrPC and 105 Evidence Actwith its illustration (a),carrying relevance in relation to the submissionsso made, could be usefully reproduced as under: - ABCDEFGH853Sections 84 and 86 IPC

84. Act of a person of unsound mind.—Nothing is an offencewhich is done by a person who, at the time of doing it, by reasonof unsoundness of mind, is incapable of knowing the nature of theact, or that he is doing what is either wrong or contrary to law.

“86.

Offence requiring a particular intent or knowledgecommitted by one who is intoxicated. —In cases where anact done is not an offence unless done with a particular knowledgeor intent, a person who does the act in a state of intoxication shallbe liable to be dealt with as if he had the same knowledge as hewould have had if he had not been intoxicated, unless the thingwhich intoxicated him was administered to him without hisknowledge or against his will.” Section 329 CrPC“329. Procedure in case of person of unsound mind triedbefore Court.—(1) If at the trial of any person before aMagistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequentlyincapable of making his defence, the Magistrate or Court shall, inthe first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medicaland other evidence as may be produced before him or it, is satisfiedof the fact, he or it shall record a finding to that effect and shallpostpone further proceedings in the case.14(1-A) If during trial, the Magistrate or Court of Sessionsfinds the accused to be of unsound mind, he or it shall refer suchperson to a psychiatrist or clinical psychologist for care andtreatment, and the psychiatrist or clinical psychologist, as the casemay be shall report to the Magistrate or Court whether the accusedis suffering from unsoundness of mind: Provided that if the accused is aggrieved by the informationgiven by the psychiatric or clinical psychologist, as the case maybe, to the Magistrate, he may prefer an appeal before the MedicalBoard which shall consist of—14 Inserted by the Code of Criminal Procedure (Amendment) Act, 2008, Act No.

5 of2009 (w.e.f. 31.12.2009).PREM SINGH v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH854SUPREME COURT REPORTS[2023] 5 S.C.R.(a) head of psychiatry unit in the nearest governmenthospital; and(b) a faculty member in psychiatry in the nearest medicalcollege.15(2) If such Magistrate or Court is informed that the personreferred to in sub-section (1-A) is a person of unsound mind, the Magistrate or Court shall further determine whether unsoundnessof mind renders the accused incapable of entering defence and ifthe accused is found so incapable, the Magistrate or Court shallrecord a finding to that effect and shall examine the record ofevidence produced by the prosecution and after hearing theadvocate of the accused but without questioning the accused, ifthe Magistrate or Court finds that no prima facie case is made outagainst the accused, he or it shall, instead of postponing the trial, discharge the accused and deal with him in the manner providedunder Section 330:Provided that if the Magistrate or Court finds that a primafacie case is made out against the accused in respect of whom afinding of unsoundness of mind is arrived at, he shall postpone thetrial for such period, as in the opinion of the psychiatrist or clinicalpsychologist, is required for the treatment of the accused.

(3) If the Magistrate or Court finds that a prima facie caseis made out against the accused and he is incapable of enteringdefence by reason of mental retardation, he or it shall not hold thetrial and order the accused to be dealt with in accordance with Section 330.” Section 105 Evidence Act“105. Burden of proving that case of accused comes withinexceptions.—When a person is accused of any offence, theburden of proving the existence of circumstances bringing thecase within any of the General Exceptions in the Indian PenalCode, (45 of 1860), or within any special exception or provisocontained in any other part of the same Code, or in any law definingthe offence, is upon him, and the Court shall presume the absenceof such circumstances.15 Substituted by the Code of Criminal Procedure (Amendment) Act, 2008, Act No. 5of 2009 (w.e.f. 31.12.2009). ABCDEFGH855Illustrations(a) A, accused of murder, alleges that, by reason of unsoundnessof mind, he did not know the nature of the act.

The burden of proof is on A.********” 20. As noticed, in regard to the mental status of the appellant, two-fold submissions have been made in the present appeal. Oneconcerning his mental incapacity at the time of commission of crime andsecond, as regards the legality and validity of trial where the investigatingagency and the prosecution did not project the factors relating to mentalincapacity of the appellant and the Trial Court did not adopt the procedureenvisaged by Section 329 CrPC. These submissions are founded on thefacts that the appellant was addicted to alcohol and was admitted to therehabilitation centre for de-addiction. It has also been underscored thatthe family members of the appellant got him discharged from therehabilitation centre against advice and without letting him complete thecourse for rehabilitation to its expected duration. The submissions carryseveral shortcomings and could only be rejected in the facts of the presentcase.21.

It remains trite that the burden of proving the existence ofcircumstances so as to bring the case within the purview of Section 84IPC lies on the accused in terms of Section 105 of the Evidence Act; and where the accused is charged of murder, the burden to prove that asa result of unsoundness of mind, the accused was incapable of knowingthe consequences of his acts is on the defence, as duly exemplified byillustration (a) to the said Section 105 of the Evidence Act. As noticed, the mandate of law is that the Court shall presume absence of thecircumstances so as to take the case within any of the General Exceptionsin the Indian Penal Code, 1860. The principles of burden of proof in thecontext of plea of unsoundness of mind had been stated by this Court inthe case of Dahyabhai Chhaganbhai Thakkar (supra) in the followingterms: -“7. The doctrine of burden of proof in the context of the plea ofinsanity may be stated in the following propositions: (1) Theprosecution must prove beyond reasonable doubt that the accusedhad committed the offence with the requisite mens rea, and theburden of proving that always rests on the prosecution from thePREM SINGH v.

STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH856SUPREME COURT REPORTS[2023] 5 S.C.R.beginning to the end of the trial. (2) There is a rebuttablepresumption that the accused was not insane, when he committedthe crime, in the sense laid down by Section 84 of the IndianPenal Code: the accused may rebut it by placing before the courtall the relevant evidence oral, documentary or circumstantial, butthe burden of proof upon him is no higher than that rests upon aparty to civil proceedings. (3) Even if the accused was not able toestablish conclusively that he was insane at the time he committedthe offence, the evidence placed before the court by the accusedor by the prosecution may raise a reasonable doubt in the mind ofthe court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court wouldbe entitled to acquit the accused on the ground that the generalburden of proof resting on the prosecution was not discharged.” 22.

As noticed, the prosecution has proved beyond reasonabledoubt that the accused has committed the offences of murdering thechildren and causing disappearance of evidence. The other surroundingfactors also show that prosecution has proved the requisite mens reawith reference to the manner of commission of crimes and projectingfalse narratives by the appellant. In the given set of facts andcircumstances, on the submission as made as regards unsoundness ofmind, the question in the present case is as to whether the accused-appellant has been able to establish that he was insane at the time ofcommitting the offence or anything has been projected on record forwhich even a reasonable doubt could be entertained as regards mensrea? The answer to this question, in our view, could only be in the negative.23. The evidence on record, taken as a whole, at the most showsthat the appellant was addicted to alcohol and was admitted to therehabilitation centre for de-addiction.

However, there is absolutely nothingon record to show that the appellant was medically treated as a personof unsound mind or was legally required to be taken as a person ofunsound mind. Contrary to the suggestions made on behalf of theappellant, the testimony of PW-3 Jagbir, manager of rehabilitation centre, had been clear and specific that during his stay in the centre, no mentalillness was observed in the appellant nor was he treated for any mentalillness. PW-3 stated in categorical terms that the behaviour of the appellant‘was normal during his said stay and he was never given anymedicine for mental illness because neither any mental illness was ABCDEFGH857observed in him nor his family members gave us any previous historyof his suffering from any mental illness.’ In his cross-examination, this witness further removed any doubt in regard to the mental status ofthe appellant while maintaining that the appellant ‘was mentally fit andsound during his stay at our centre and he was admitted only forde-addiction of his habit of consuming liquor.’Hence, the appellant’shad only been a case of addiction to alcohol.

The manager, PW-3, ofcourse, suggested the opinion that the appellant ought to have undergonethe course for a period of 7-9 months and that the family members gothim discharged against advice but, this statement cannot be read to meanthat the appellant was to be treated as a person of unsound mind. Infact, the appellant remained admitted to the rehabilitation centre from20.11.2008 to 29.04.2009, i.e., for a period of over 5 months and, asnoticed above, he was never found suffering from any mental illness soas to be regarded as a person of unsound mind.24. It is also noticed that the plea of unsoundness of mind and, therefore, the benefit of Section 84 IPC, was never taken in the trial norany evidence was led in this regard. Significantly, not even a remotesuggestion was made to any witness examined for the prosecution aboutthe alleged mental incapacity of the appellant. In his examination under Section 313 CrPC, the response of the appellant to the questions relatingto his admission to the rehabilitation centre and the related facts hadbeen that those aspects were ‘a matter of record’. In the given set offacts and circumstances, we are unable to find anything on record forwhich the benefit of Section 84 IPC could even be remotely extended tothe appellant.25.

Similarly, the submissions that when the state of mind/mentalcondition of appellant was brought on record, the Trial Court ought tohave ordered an evaluation to rule out any doubt, remain rather bereft oflogic.25.1. In the relied upon passage in the decision of Gujarat HighCourt cited on behalf of the appellant in case of Manjuben (supra), the Court had explained the basics relating to the operation of Section 329CrPC and its distinction from Section 84 IPC in following terms: -“43. *** *** ***23. Section 329 of the Cr.P.C. on the other hand, providesfor a procedure in case of a person of unsound mind triedPREM SINGH v. STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH858SUPREME COURT REPORTS[2023] 5 S.C.R.before the Court. Section makes it clear that in a trial beforethe Magistrate or Court of Sessions, if the accused appearsto be of unsound mind and consequently incapable of makinghis defence, then the Courts hall, in the first instance, try thefact of such unsoundness of mind and incapacity and ifsatisfied in this regard, shall record a finding to that effectand shall postpone the further proceedings.

This Section issimilar to Section 328 of the Cr.P.C. with this-difference thatthe latter relates to an enquiry before a Magistrate, while this Section relates to the trial before the Magistrate or Court of Sessions. However, both the Sections relate to unsoundnessof mind at the time of inquiry or trial that the accused is ofunsound mind. A Magistrate cannot act on his own opinion. Hemust have before him a statement of medical officer, whomust be examined. Where the Court decides that the accusedis of unsound mind and consequently incapable of making hisdefence, the trial is to be postponed. As provided in Section330 of the Cr.P.C. such a person may be released on sufficientsecurity being given that he shall be properly taken care ofand shall be prevented from doing injury to himself or toanyother person or for his appearance when required beforethe Magistrate or the Court. The Court or the Magistrate isalso entitled to direct the accused to be detained in safe custodyin such a place and manner as it may think fit if it is of theview that the bail should not be taken or sufficient security isnot given.

Section 331 of the Cr.P.C. thereafter talks ofresumption of enquiry or trial, when the concerned personsceases to be of unsound mind. Section 332 of the Cr.P.C.prescribes a procedure to proceed with the trial or enquiry asthe case may be.*********” 25.1.1. The aforesaid expositions on the scope of the provisionsrelating to accused person of unsound mind are not of much debate. However, nothing of the aforesaid principles could apply to the presentcase, for there had been no material on record and no other reasonappeared during trial for which, the Trial Court would have been obligedto take recourse of the procedure contemplated by Section 329 CrPC.25.2.Similarly, the suggestions about defect in trial or failure onthe part of the investigating agency to get the appellant examined through ABCDEFGH859psychiatrist with reference to the decision of the Bombay HC in case of Ajay Ram Pandit (supra) remain too far-stretched.

In the said case, itwas noticed that the investigating officer became aware of the factafter apprehending the accused that he was mentally unstable and infact, the people in his locality used to consider him as a mad man. Thefact situation of the present case is entirely different.25.3.In the given set of facts and circumstances, we are notdilating on the other decisions cited by the learned counsel for the appellantfor being not relevant for the present purpose. Fact of the matter in thepresent case remains that there is nothing on record to show that theappellant was a person of unsound mind, whether at the time ofcommission of crimes or during the course of trial.26. Apart that there was no fault on the part of the Trial Court orthe investigating agency, it is also noteworthy that contrary to even atrace of want of mental capacity of the appellant at the time of commissionof the crimes in question, the manner of commission, with strangulationof the children one by one; throwing of their dead bodies into the canal; appellant himself swimming in the canal and coming out; and immediatelythereafter, stating before several persons that the children hadaccidentally slipped into the canal so as to project it as a case of accidentaldrowning, if at all, show an alert and calculative mind, which had workedwith specific intent to cause the death of the children and to causedisappearance of evidence by throwing dead bodies into the canal andthereafter, to mislead by giving a false narrative.

By no logic and by nomeasure of assessment, the appellant, who is found to have carried allthe aforesaid misdeeds, could be said to be a person of unsound mind.27. Thus, we are clearly of the view that the appellant was neithersuffering from any medically determined mental illness nor could be saidto be a person under a legal disability of unsound mind. Hence, neitherSection 84 IPC applies to the present case nor Section 329 CrPC wouldcome to the rescue of the appellant.28. The suggestions about treatment of the appellant for hisabnormal behaviour in jail also does not take his case any further. Asnoticed, there is nothing on record to find that the appellant was a personof unsound mind at the time of commission of crime or was a person ofunsound mind when tried in this case. Post-conviction behaviour is hardlyof any relevance so far as present appeal is concerned. In fact, his post-conviction abnormalities, as dealt with in year 2013 i.e., nearly two yearsafter the impugned judgment of the Trial Court, cannot even remotely bePREM SINGH v.

STATE OF NCT OF DELHI[DINESH MAHESHWARI, J.] ABCDEFGH860SUPREME COURT REPORTS[2023] 5 S.C.R.correlated with the relevant questions arising for the purpose of presentappeal. Even in that regard, the report of the Medical Officer (I/C)Central Jail No. 5, Tihar New Delhi dated 22.07.2013 states that theappellant was admitted to psychiatry ward from 07.01.2013 to 04.03.2013for complaints of abnormal behaviour but, he improved following treatmentand at time of issuance of certificate, his general condition wassatisfactory; and his mental status examination did not reveal any grosspsychopathology.29. Hence, viewed from any angle, the contention urged on behalfof appellant, as to be given the benefit of the provisions meant for aperson of unsound mind, cannot be accepted. The said provisions do notenure to the benefit of the appellant from any standpoint.30. We may in the passing also observe that in the given set offacts and circumstances, even when the appellant was shown to be aperson taken to excessive consumption of alcohol, there is nothing onrecord to show if he did the offending acts in a state of intoxication so asto give rise to a doubt about intention with reference to the principlesunderlying Section 86 IPC. We need not elaborate on this aspect for thesame having not been projected in evidence at all.

In other words, thepresent one is not a case where intent could be ruled out so as to reducethe offence of murder to that of culpable homicide not amounting tomurder. The suggestions about altering the conviction to Section 304IPC are also required to be rejected. Conclusion31. For what has been discussed hereinabove, we are satisfiedthat there is no infirmity in the findings concurrently recorded by the Trial Court and the High Court that the prosecution case is amplyestablished by cogent and convincing chain of circumstances, pointingonly to the guilt of the appellant, who caused the death of victim children, his sons, by strangulation and also caused the evidence of offence todisappear by throwing the dead bodies into the canal. The submissionsevolved for the purpose of the present appeal that the appellant beextended the benefit of alleged want of mental capacity also remainbaseless and could only be rejected. Therefore, no case for interferenceis made out.32. Consequently, this appeal fails and is, therefore, dismissed. Bibhuti Bhushan BoseAppeal dismissed. (Assisted by : Vinayak and Keya Rebello, LCRAs)